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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


v« 


1905 
SUPPLEMENT 

TO 

DEERING'S 

CIVIL   CODE 


CALIFORNIA 

(Issued    in    1903) 

The  Amendments   to  the    Civil   Code  Enacted  at 
THE   Legislative    Sesston  of   1905,  with   Cita- 
tions OF  the  Supreme  Court  of  California, 
FROM   Volumes   138  to  145,   Inclusive, 
OF   California   Reports 

BY 

JAMES   H.  DEERING 

SAN  FRANCISCO 
BANCROFT-WHITNEY    COMPANY 

Law  Publishers  and  Law  Booksellers 
J'J05 


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w'Jj.LQA 


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^  SUPPLEMENT    - 

TO   THE 

CODES  AND  STATUTES 


OP 


CALirOIlXIA 
WITH  CITATIONS  OF  DECISIONS 


CIVIL    CODE 


§       4.     Supp.  Cal.  Eep.  Cit.  145,  715. 

§       8.     En  March  21,  1S72.  Eep.  Stats.  1905,  11. 

§  9,  Business  days.  All  other  days  than  those  men- 
tioned in  section  seven  are  to  be  deemed  business  days  for 
all    purposes.     En.    March    21,  1872.     Am'd,    1905,    11. 

§     13.     Supp.   Cal.   Eep.   Cit.  145,  84;   145,  409. 

§     14.     Supp.  Cal.  Eep.  Cit.  140,  409;  141,  115.     Subd.  2— 
142,  539.     Subd.  3—142,  539. 

§     19.     Supp.  Cal.  Eep.  Cit,  139,  237;  140,  40. 

§     29.     Supp.  Cal.  Eep.  Cit.  1S9,  483. 

§     38.     Supp.  Cal.  Eep.  Cit.  139,  511. 

§     39.     Supp.  Cal.  Eep.  Cit.  140,  152. 
Civil  Code— 1 


f  §  49-52  SUPPLEMENT.  2 

§  49.  Personal  relations  forTiid.  The  rights  of  personal 
relations  forbid: 

1.  Abduction.  The  abduction  of  a  husband  from  his  wife 
or  of  a  parent  from  his  child. 

2.  Same.  The  abduction  or  enticement  of  a  wife  from  her 
husband,  or  a  child  from  a  parent,  or  from  a  guardian  en- 
titled to  its  custody. 

3.  Seduction.  The  seduction  of  a  wife,  daughter,  orphan 
sister,  or  servant. 

4.  Injury  to  servant.  Any  injury  to  a  servant  which  af- 
fects his  ability  to  serve  his  master.  En.  March  21,  1872. 
Am'd.  1905,  68. 

§  51.  Personal  rights,  all  persons  have  equal.  All  citi- 
zens within  the  jurisdiction  of  this  state  are  entitled  to  the 
full  and  equal  accommodations,  advantages,  facilities,  and 
privileges  of  inns,  restaurants,  hotels,  eating  houses,  barber 
shops,  bath  houses,  theaters,  skating  rinks,  and  all  other 
places  of  public  accommodation  or  amusement,  subject  only 
to  the  conditions  and  limitations  established  by  law  and 
applicable  alike  to  all  citizens.     En.  Stats.  1905,  553. 

51,  52.  The  statute  of  1897,  page  137,  relating  to  the  rights  of 
persons,  is  codified  in  the  two  sections  above  named. — Code 
Commissioner's   Note. 

§  52.  Violation  of  preceding  provisions;  damages.  Who- 
ever violates  any  of  the  provisions  of  the  last  preceding 
section,  by  denying  to  any  citizen,  except  for  reasons  ap- 
plicable alike  to  every  race  or  color,  the  full  accommoda- 
tions, advantages,  facilities,  and  privileges  in  said  section 
enumerated,  or  by  aiding  or  inciting  such  denial,  or  who- 
ever makes  any  discrimination,  distinction,  or  restriction 
on  account  of  color  or  race,  or  except  for  good  cause,  ap- 
plicable alike  to  all  citizens  of  every  color  or  race  what- 
ever, in  respect  to  the  admission  of  any  citizen  to,  or  his 
treatment  in,  any  inn,  hotel,  restaurant,  eating  house,  bar- 
ber shop,  bath  house,  theater,  skating  rink,  or  other  public 
place  of  amusement  or  accommodation,  whether  such  place 
is  licensed  or  not,  or  whoever  aids  or  incites  such  discrim- 
ination, distinction,  or  restriction,  for  each  and  every  such 
offense  is  liable  in  damages  in  an  amount  not  less  than  fifty 
dollars,  which  may  be  recovered  in  an  action  at  law  brought 
for  that  purpose.     En.  Stats.  1905,  553. 

See  note  to  §  51,  ante. 


3  CIVIL  CODE.  §§  53-61 

§  53.  Admittance  to  places  of  amusement,  etc.,  on  pres- 
entation of  ticket,  or  price  of  ticket;  exceptions.  It  is  un- 
lawful for  any  corporation,  person,  or  association,  or  the 
proprietor,  lessee,  or  the  agents  of  either,  of  any  opera 
Louse,  theater,  melodeon,  museum,  circus,  caravan,  race 
course,  fair,  or  other  place  of  public  amusement  or  enter- 
tainment, to  refuse  admittance  to  any  person  over  the  age 
of  twenty-one  years,  who  presents  a  ticket  of  admission  ac- 
quired by  purchase,  or  who  tenders  the  price  thereof  for 
such  ticket,  and  who  demands  admission  to  such  place.  Any 
person  under  the  influence  of  liquor,  or  who  is  guilty  of 
boisterous  conduct,  or  any  person  of  lewd  or  immoral  char- 
acter, may  be  excluded  from  any  such  place  of  amusement. 
En.  Stats.  1905,  554. 

53,  54.  The  statute  of  1893,  page  220,  relating  to  the  rights  of 
persons,  is  codified  in  the  sections  above  named. — Code 
Commissioner's    Note. 

§  54.  Violation  of  preceding  provisions;  damages.  Any 
person  who  is  refused  admission  to  any  place  of  amusement 
contrary  to  the  provisions  of  the  last  preceding  section,  is 
entitled  to  recover  from  the  proprietor,  lessee,  or  their 
agents,  or  from  any  such  person,  corporation,  or  associa- 
tion, or  the  directors  thereof,  his  actual  damages,  and  one 
hundred  dollars  in  addition  thereto.     En.   Stats.   1905,   554. 

See  note  to  §  53,  ante. 

§  58.  En.  March  21,  1872.  Am'd.  1873-4,  185.  .Eep. 
1905,  554. 

Supp.  Cal.  Eep.  Cit.     lo8,  549. 

58.  The  provisions  of  this  section  are  contained  in  the  present  sec- 
tion 82.  The  section  is  therefore  unnecessary.— Code  Com- 
missioner's Note. 

§  60.  Marriages,  illegal.  All  marriages  of  white  per- 
sons with  negroes,  Mongolians,  or  mulattoes  are  illegal  and 
void.     En.  March  21,  1872.     Am'd.  1905,  554. 

60.  The  change  consists  in  the  insertion  of  the  word  "mongolians" 
after    the    word    "negroes."— Code    Commissioner's    Note. 

§  61.     Supp.  Cal.  Eep.  Cit.     139,  632;   140,  248;   140,  249; 
140,  485;  140,  488.     Subd.  2—140,  247. 


§§68,69  SUPPLEMENT.  4 

§  68.  Marriages,  procedure  rectuired.  Marriage  must  be 
licensed,  solemnized,  autlienticated,  and  recorded  as  pro- 
vided in  this  article;  but  noncompliance  with  its  provisions 
by  others  than  a  party  to  a  marriage  does  not  invalidate 
it.     En.  March  21,  1872.     Am'd.  1895,  121;   1905,  554. 

68.  The  change  consists  in  the  substitution  of  the  word  "others" 
for  "other"  before  "than";  the  substitution  of  "a  party" 
for  "the  parties"  after  "than";  and  the  substitution  of 
"it"  for  "that  marriage"  after  "invalidate."  The  mean- 
ing of  the  section  is  unchanged. — Code  Commissioner's 
Note. 

§  69.  Marriage  licenses.  All  persons  about  to  be  joined 
in  marriage  must  first  obtain  a  license  therefor  from  the 
county  clerk  of  the  county  in  which  the  marriage  is  to  be 
celebrated,  and  must  upon  oath  qualify  aad  show  as  fol- 
lows: 

1.  The  identity  of  the  parties; 

2.  Their   real   and  full   names   and   places   of   residence; 

3.  Their    ages; 

4.  No  license  must  be  granted  when  either  of  the  parties 
applicants  therefor  is  an  imbecile  or  insane,  or  who  at  the 
time  of  making  application  for  said  license  is  under  the  in- 
fluence  of   any  intoxicating   liquor,   or   narcotic   drug; 

5.  No  license  must  be  issued  authorizing  the  marriage  of 
a  white  person  with   a  negro,   mulatto,   or   mongolian; 

6.  If  the  male  is  under  the  age  of  twenty-one,  or  the 
female  under  the  age  of  eighteen  years,  the  consent  of  the 
father,  mother  or  guardian,  if  such  consent  is  given;  or 
that  such  non-age  person  has  been  previously,  but  is  not 
at  the  time  married. 

If  the  male  is  under  the  age  of  twenty-one,  or  the  :^emale 
under  the  age  of  eighteen  years,  and  such  person  has  not 
been  previousl}^  married,  no  license  must  be  issued  by  the 
clerk  unless  the  consent  in  writing  of  the  parents  of  the 
person  under  age,  or  one  of  such  parents,  or  of  his  or  her 
guardian  is  presented  to  him  duly  verified  by  such  parents 
or  parent  or  guardian;  and  such  consent  must  be  filed  by 
the  clerk  and  he  must  state  such  facts  in  the  license.  For 
the  purpose  of  ascertaining  all  the  facts  mentioned  and  re- 
quired in  this  section,  the  clerk  must  at  the  time  the  license 
is  applied  for  examine  the  parties  to  whom  the  license  is 
to  be  issued  under  oath  and  reduce  such  examination  to 
writing  to  be  by  them  subscribed.  En.  March  21,  1872. 
Am'd.^1873-4,  185;   1880,  3;   1905,  182. 


§      ■  CIVIL   CODE.  §§  70-95 

§  70.     Supp.  Cal.  Eep.  Cit.     140,  221. 

§  79(7.  Not  applicable  to  members  of  particular  religious 
denomination.  The  provisions  of  this  chapter,  so  far  as 
they  relate  to  the  solemnizing  of  marriages,  are  not  appli- 
cable to  members  of  any  particular  religious  denomination 
having,  as  such,  any  peculiar  mode  of  entering  the  mar- 
riage relation;  but  such  marriages  must  be  declared,  as  pro- 
vided in  section  seventy-six,  and  be  acknowledged  and  re- 
corded, as  provided  in  section  seventy-seven.  Where  a  mar- 
riage is  declared  as  provided  in  said  section  seventy-six, 
the  husband  must  file  said  declaration  with  the  county  re- 
corder within  thirty  days  after  such  marriage,  and  upon 
receiving  the  same  the  county  recorder  must  record  the 
same;  and  if  the  husband  fails  to  make  such  declaration 
and  file  the  same  for  record,  as  herein  provided,  he  is  liable 
to  the  same  penalties  as  any  person  authorized  to  solemnize 
marriages,  who  fails  to  make  the  return  of  such  solemniza- 
tion as  provided  by  law.  En.  Stats,  1897,  186.  Am'd.  1905, 
555. 

79a  (791^^).  The  change  consists  in  the  omission  of  the  words 
''procuring  a  license  and"  after  "to,"'  thus  requiring  a 
license  in  every  case,  but  leaving  the  mode  of  celebrating 
the  marriage  as  at  present.  The  section  is  renumbered 
79a. — Code  Commissioner's  Note. 

§  84,  Children  of  annulled  marriages.  A  judgment  of 
nullity  of  marriage  does  not  afPect  the  legitimacy  of  chil- 
dren begotten  before  the  judgment.  En.  March  21,  1872. 
Am'd,  1905,  555. 

84.  The  design  of  the  amendment  is  to  make  the  rule  declared  in 
this  section  applicable  to  all  judgments  adjudging  marriage 
null,  the  present  section  applying  only  to  cases  where  a 
marriage  is  annulled  on  the  ground  that  a  former  husband 
or  wife   was   living.— Code   Commissioner's   Note. 

§  91.     Supp.    Cal.    Eep,    Cit.     140,    488. 

§  94.  Divorce,  extreme  cruelty  cause  of  action  for.  Ex- 
treme cruelty  is  the  wrongful  infliction  of  grievous  bodily 
injury,  or  grievous  mental  suffering,  upon  the  other  by  one 
party  to  the  marriage.  En.  March  21,  1S72.  Am'd.  1905, 
75.' 

§     95.     Supp.   Cal.   Eep.   Cit.     142,   525. 


§§  96  137                                   SUPPLEMENT.  6 

§     96.  Supp.  Cal.  Rep.   Cit.  144,  627. 

§     99.  Supp.  Cal.  Eep.   Cit.  140,  115. 

§  101.  Supp.  Cal.  Eep.  Cit.  140,  115;  140,  117;  140,  125. 

§  124.  Supp.  Cal.  Eep.  Cit.  140,  118.     Subd.  3—140,  117. 

§  125.  Supp.   Cal.  Eep.  Cit.  140,  118. 

§  128.  Supp.  Cal.  Eep.  Cit.  140,  483. 

§  130.  Supp.  Cal.  Eep.  Cit.  140,  119;  140,  483;  145,  787. 

§  131.     Supp.  Cal.  Eep.  Cit.     140,  479;  140,  480;  140,  488; 
143,  631. 

§  132.     Supp.  Cal.  Eep.  Cit.     140,  480;  140,  488;  143,  631. 

§  136.  Divorce,  maintenance  by  husband  where  judgment 
is  denied.  Though  judgment  of  divorce  is  denied,  the  court 
may,  in  an  action  for  divorce,  provide  for  the  maintenance 
by  the  husband,  of  the  wife  and  children  of  the  marriage, 
or  any  of  them.     En.  March  21,  18'72.     Am'd.  1905,  &3i. 

§  137.  Alimony  to  be  paid  while  action  is  pending; 
action  for  support.  When  an  action  for  divorce  is  pend- 
ing, the  court  may,  in  its  discretion,  require  the  husband 
to  pay  as  alimony  any  money  necessary  to  enable  the  wife 
to  support  herself  and  her  children,  or  to  prosecute  or  de- 
fend the  action.  When  the  wife  has  any  cause  of  action 
for  divorce  as  provided  in  section  ninety-two  of  this  code, 
she  may,  without  applying  for  a  divorce,  maintain  in  the 
superior  court  an  action  against  him  for  permanent  sup- 
port and  maintenance  of  herself  or  of  herself  and  children. 
During  the  pendency  of  such  action  the  court  may,  in  its 
discretion,  require  the  husband  to  pay  as  alimony  any  money 
necessary  for  the  prosecution  of  the  action  and  for  support 
and  maintenance,  and  execution  may  issue  therefor  in  the 
discretion  of  the  court.  The  final  judgment  in  such  action 
may  be  enforced  by  the  court  by  such  order  or  orders  as 
in  its  discretion  it  may  from  time  to  time  deem  necessary, 
and  such  order  or  orders  may  be  varied,  altered,  or  revoked 


7  CIVIL  CODE.  §§  138-171 

at  the  discretion  of  the  court.     En.  March  21,  1872.     Am'd. 
1877-8,   76;   1880,  4;   1905,  205. 

Supp.  Cal.  Eep.  Cit.     143,  633;   144,  326. 

§  138.  Custody  and  maintenance  of  minors  during  actions 
for  divorce.  In  actions  for  divorce  the  court  may,  during 
the  pendency  of  the  action,  or  at  the  final  hearing  or  at  any 
time  thereafter  during  the  minority  of  any  of  the  children 
of  the  marriage,  make  such  order  for  the  custody,  care, 
education,  maintenance  and  support  of  such  minor  children 
as  may  seem  necessary  or  proper,  and  may  at  any  time 
modify,  or  vacate  the  same.  En.  March  21,  1872.  Am'd. 
1905,  43. 

§  139.     Supp.  Cal.  Eep.  Cit.     144,  326. 

§  140.     Supp.   Cal.  Eep.   Cit.     144,   325;   144,  526. 

§  158.     Supp.  Cal.  Eep.  Cit.     139,  253;  142,  124;  143,  649; 
145,  599. 

§  159.  Supp.  Cal.  Eep.  Cit.  145,  599. 

§  161.  Supp.   Cal.   Eep.   Cit.  139,  560;   145,  480. 

§  162.  Supp.   Cal.   Eep.   Cit.  143,  295. 

§  163.  Supp.   Cal.  Eep.  Cit.  142,  5;   142,  6. 

§  164.     Supp.  Cal.  Eep.  Cit.     138,  572;  142,  121;  143,  295; 
143,  647. 

§  171.  Separate  property  of  wife  liable  for  own  debts 
and  for  necessaries  of  life.  The  separate  property  of  the 
wife  is  liable  for  her  own  debts  contracted  before  or  after 
her  marriage,  but  is  not  liable  for  her  husbands  debts; 
provided,  that  such  property  is  liable  for  the  payment  of 
debts  contracted  by  the  husband  or  wife  for  the  neces- 
saries of  life  furnished  to  them  or  either  of  them  while 
they  are  living  together.  Provided  that  the  provisions  of 
this  act  shall  not  apply  to  the  separate  property  of  the 
wife  held  by  her  at  the  time  of  her  marriage  or  acquired 
by  her  by  devise  or  succession  after  marriage.  En.  March 
21    1872.     Am'd.  1905,  206. 


§§  172-227  SUPPLEMENT,  8 

§  172.  Supp.  Cal.  Kep.  Cit.  139,  565;  142,  522;  145,  599. 

§  193.  Supp.   Cal.  Eep.   Cit.  145,   715. 

§  196.  Supp.  Cal.  Eep.   Cit.  145,  716. 

§  197.  Supp.   Cal.   Eep.   Cit.  142,   426. 

§  198.  Supp.  Cal.  Eep.  Cit.  142,  426. 

§  203.  Supp.  Cal.  Eep.  Cit.  143,  404;   143,  405. 

§  204.  Supp.  Cal.  Eep.  Cit.  142,  426;  143,  403. 

§  207.  Supp.  Cal.  Eep.  Cit.  145,  716;  145,  717. 

§  226.  Adoption  of  child,  petition;  consent  of  residents 
necessary;  consent  of  nonresidents.  Any  person  desiring  to 
adopt  a  child  may,  for  that  purpose,  petition  the  superior 
court  of  the  county  in  which  the  petitioner  resides.  The 
person  adopting  a  child,  and  the  child  adopted,  and  the 
other  persons,  if  within  or  residents  of  this  state,  whose 
consent  is  necessary,  must  appear  before  the  court,  and  the 
necessary  consent  must  thereupon  be  signed  and  an  agree- 
ment executed  by  the  person  adopting,  to  the  effect  that 
the  child  shall  be  adopted  and  treated  in  all  respects  as  his 
own  lawful  child  should  be  treated.  If  the  persons  whose 
consent  is  necessary  are  not  within  or  are  not  residents 
of  this  state,  then  their  written  consent,  duly  proved  or 
acknowledged,  according  to  sections  eleven  hundred  and 
eighty-two  and  eleven  hundred  and  eighty-three,  must  be 
filed  in  said  superior  court  at  the  time  of  the  application 
for  adoption.  En.  March  21,  1872.  Am'd.  lS7'5-6,  69;  1880, 
4;  1905,  555. 

226.  The  first  two  sentences  of  this  section  have  been  recast  with 
the  design  of  making  the  proceeding  for  adoption  judicial, 
thereby  supporting  it  by  the  same  intendments  which  are 
indulged  in  favor  of  other  proceedings  conducted  in  courts 
of    record. — Code    Commissioner's    Note. 

§  227.  Judge's  order;  petition,  order,  etc.,  where  filed. 
The  court  must  examine  all  persons  appearing  before  it  pur- 
suant to  the  last  section,  each  separately,  and  if  satisfied 
that  the  interests  of  the  child  will  be  promoted  by  the  adop- 
tion, it  must  make  an  order  declaring  that  the  child  shall 


9  CIVIL  CODE.  §§  228-246 

thenceforth  be  regarded  and  treated  in  all  respects  as  the 
child  of  the  person  adopting.  The  petition,  agreement,  con- 
sent, and  order  must  be  filed  and  registered  in  the  office  of 
the  county  clerk  in  the  same  manner  as  papers  in  other  spe- 
cial proceedings.  En.  March  21,  1872.  Am'd.  1905,  556. 
Supp.  Cal.  Eep.  Cit.     140,  469;  141,  406, 

227.  The  change  consists  in  the  substitution  of  the  word  "court" 
for  the  word  "judge,"  and  in  the  addition  of  the  last 
sentence,  said  sentence  being  added  for  the  purpose  of 
making  it  clear  that  the  papers  constituting  part  of  the 
adoption,  or  of  the  proceeding  therefor,  must  be  filed  and 
preserved   by    the    clerk. — Code    Commissioner's    Note. 

§  228.     Supp.  'Cal.  Eep.   Cit.     140,  469. 

S  230.     Supp,  Cal.  Eep.  Cit.     142,  160;  142,  168;  142,  169; 
142,  170;  142,  171;   142,  172. 

§  242.     En.   March  21,   1872.     Eep.   1905,   728. 

242,  243,  244,  245.  The  provisions  of  the  above  sections,  relating 
to  guardian  and  ward,  are  controlled  by  sections  1747, 
1758,  and  1793  of  the  Code  of  Civil  Procedure.  They  are, 
therefore,  unnecessary  and  misleading. — Code  Commission- 
er's  Note. 

§  243.     En.  March  21,  1872.     Am'd.  1873-4,    196;    1880,    4. 

Eep.  1905,  728. 
See  note  to  §  242,  ante. 

§  244.     En.   March   21,   1872.     Am'd.   1880,  4.     Eep.   1905, 

723. 
See  note  to  §  242,  ante, 

§  245.     En.  March  21,  1872.     Eep.  1905,  728. 
See  note  to  §  242,  ante. 

§  246.  Rules  for  awarding  custody  of  minor.  In  award- 
ing the  custody  of  a  minor,  or  in  appointing  a  general  guard- 
ian, the  court  or  officer  is  to  be  guided  by  the  following 
considerations: 

1.  By  what  appears  to  be  for  the  best  interest  of  the  child 
in  respect  to  its  temporal  and  its  mental  and  moral  welfare; 
and  if  the  child  is  of  a  sufficient  age  to  form  an  intelligent 
preference,  the  court  may  consider  that  preference  in  deter- 
mining the  question; 


§§247,243  SUPPLEMENT.  10 

2.  As  between  parents  adversely  claiming  the  custody  or 
guardianship,  neither  parent  is  entitled  to  it  as  of  right;  but 
other  things  being  equal,  if  the  child  is  of  tender  years,  it 
should  be  given  to  the  mother;  if  it  is  of  an  age  to  require 
education  and  preparation  for  labor  and  business,  then  to 
the  father; 

3.  Of  two  persons  equally  entitled  to  the  custody  in  other 
respects,  preference  is  to  be  given  as  follows: 

(1)  To  a  parent; 

(2)  To  one  who  was  indicated  by  the  wishes  of  a  deceased 
parent; 

(3)  To  one  who  already  stands  in  the  position  of  a  trustee 
of  a  fund  to  be  applied  to  the  child's  support; 

(4)  To  a  relative. 

4.  Any  parent  who  knowingly  or  willfully  abandons,  or 
having  the  ability  so  to  do,  fails  to  maintain  his  minor  child 
under  the  age  of  fourteen  years,  forfeits  the  guardianship  of 
such  child;  and  any  parent  or  guardian  who  knowingly  per- 
mits his  child  or  ward  to  remain  for  the  space  of  one  year  in 
any  orphan  asylum  of  this  state,  wherein  such  child  is  sup- 
ported by  charity,  and  who,  during  such  period,  fails  to  give 
notice  in  writing  to  the  managers  or  officers  of  such  asylum 
that  he  is  such  parent  or  guardi^in,  abandons  and  forever  for- 
feits all  right  to  the  guardianship,  care,  custody,  and  control 
of  such  child.  The  officers  and  managers  of  any  orphan 
asylum  having  any  such  abandoned  child  in  its  care  have  the 
preferred  right  to  the  guardianship  of  such  child.  En.  March 
21,  1S72.     Am'd.  1S73-4,  196;   1905,  72S. 

Supp.  Cal.  Eep.  Cit.     142,  246. 

246.  The   change   ennsists   in   the  addition   of  subdivision   4,   which  is 

a  codification  of  the  statute  of  1873-4,  page  297,  relating  to 
the  care  of  orphan  and  abandoned  children.  The  penal 
provisions  of  that  act  are,  however,  omitted  as  they  do  not 
properly  find  a  place  in  this  Code.— Code  Commissioner's 
Kote. 

§  247.     En.   March   21,   1872.     Eep.   1905,   729. 
Supp.  Cal.  Eep.  Cit.     143,  403. 

247.  The    subject    matter    of    this    section    is    provided    for    in    sec- 

tion 1753  of  the  Code  of  Civil  Procedure.— Code  Commis- 
sioner's   Note. 

§  248.     En.  March  21,  1872.     Eep.  1905,  729. 
Supp.  Cal.  Eep,  Cit.       142,  426;  143,  403. 


11  CIVIL  CODE.  S§  249-253 

248,  249.  The  provisions  of  these  sections  are  included  in  sections 
1753  and  1770  of  the  Code  of  Civil  Procedure.— Code  Com- 
missioner's Kote. 

§  249.     En.  March  21,  1872.     Am'd.  1873-4,  197;   1880,  5. 

Eep.  1905,  729. 
See  note  to  §  248,  ante. 

§  253.     Supp.  Cal.  Eep.  Cit.     Subcl.  S— 143,  409. 

§  255.     Siipp.  Cal.  Eep.  Cit.     Siibd.  2—143,  230.     Subd.  3— 
143,  234. 

§  256.     Supp.  Cal.  Eep.  Cit.     143,  229. 

§  257.     Supp.    Cal.    Eep.    Cit.     143,    229;    143,    234. 

§  258.     En.   March   21,   1872.     Am'd.   1880,   5.     Eep.   1905, 
729. 

258.  This  section,  which  prescribed  the  mode  of  placing  insane  per- 
sons in  the  asylum,  has  been  supplanted  by  later  legis- 
lation (see  statute  of  1897,  page  311,  relative  to  the  estab- 
lishment of  a  lunacy  commission,  and  Political  Code,  sec- 
tions  2136   to   2199).— Code   Commissioner's  JS'ote. 


PART  III. 

TITLE  IV. 

Title    repealed   and   new   title   substituted   March   21.    1905. 
Stats.  1905,  560. 

MASTER  AND  APPREXTICE. 

§  264.  Minors,  when  and  to  whom  may  be  bound  as  ap- 
prentices. 

§   265.     Persons  who  may  bind  minor  with  his  consent. 

§  266.  Indenture  of  apprenticeship,  how  to  be  executed 
and  what  to  contain. 

§  267.     Jury  trial  as  to  facts  of  incapacity,  etc.,  of  parent. 


g  264  SUPPLEMENT.  12 

§  268.     Apprenticing  of  poor  and  homeless  minors. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  de- 
liver him  money  and  other  property  therein. 

§  270.  Duty  to  inquire  into  the  treatment  of  minor  ap- 
prentices. 

§  271.     Hearing  of  complaints  of  apprentices. 

§  272.  Power  of  court  to  discharge  apprentice  from  ap- 
prenticeship. 

§  273.     Liability  of  master  for  breach  of  his  covenant. 

§  274.  Liability  of,  and  proceedings  against,  apprentice 
guilty  of  gross  misbehavior, 

§  275.     Enticing  away  apprentices  and  liability  for. 

§  276.  Eelease  of  master  removing  out  of  state  or  quitting 
business, 

§  264.  Minors,  when  and  to  whom  may  "be  bound  as  ap- 
prentices. Every  minor  of  the  age  of  fourteen  years  or  up- 
wards may  be  bound  by  indenture  as  an  apprentice  to  any 
mechanical  trade  or  art  or  the  occupation  of  farming  to  the 
age  of  eighteen  years,  if  a  female,  or  to  the  age  of  twenty- 
one  years,  if  a  male.  En.  March  21,  1872.  Eep.  1905,  560. 
En.   1905,   560. 

364,  265,  266,  267,  26S,  269,  270,  271,  272,  273,  274,  275,  276.  These 
sections  codify  the  statute  of  1875-6,  page  842,  relative  to 
masters  and  apprentices,  as  amended  in  1880,  page  28,  the 
old  chapter  being  repealed  and  the  provisions  of  the  acts 
above  referred  to  substituted  in  place  thereof.  In  this  co- 
dification section  1  of  the  statute  has  been  made  section 
264;  sections  2  and  7,  265;  sections  3,  4,  5,  and  12,  266; 
section  6,  267 ;  section  8  and  the  latter  part  of  section  9, 
268;  the  first  clause  of  section  9  and  all  of  section  10, 
269;  section  11,  270;  section  13,  271;  section  14,  272; 
section  15,  273;  sections  16  and  17,  274;  section  19,  275; 
section  20,  276.  It  vifill  be  observed  that  section  18  of  the 
statute  has  been  omitted.  It  purports  to  make  the  parties 
to  an  indenture  of  apprenticeship  liable  to  the  master  for 
any  breach  thereof.  The  theory  of  the  statute  is  that  the 
contract  of  apprenticeship  is  not  made  by  the  minor,  but 
by  his  parent  or  guardian.  If  such  parent  or  guardian  is 
made  personally  liable  on  the  contract,  a  parent  will  rarely, 
and  the  guardian  almost  never,  enter  into  it.  It  seems 
sufficient  that  such  parent  or  giiardian  be  made  answerable 
for  the  cost  of  the  proceeding  brought  by  the  master  to  be 
released  from  the  indenture,  as  provided  for  in  section 
274.  The  master  on  his  part  is  not  absolutely  bound,  be- 
cause he  may,  if  he  wishes  to  remove  from  the  state,  or  to 
quit  his  trade  or  business,  apply  to  be  released  from  his  con- 
tract, and  he  may  take  like  action  whenever  the  appren- 
■  tice  is  guilty  of  neglect,  refusal  to  do  his  duty,  or  gross 
misbehavior.  These  considerations  seem  to  furnish  good 
reason  for  the  omissiou  of  the  section. — Code  Commission- 
er's Note. 


13  CIVIL  CODE.  §§  265-267 

§  265.    Persons  who  may  bind  minor  with  his  consent.     A 

minor,  with  his  consent,  may  be  bound  by  his  father,  or,  in 
case  of  his  death  or  incompetency,  or  -where  he  has  willfully 
abandoned  his  family  for  one  year  without  making  suitable 
provision  for  their  support,  or  is  habitually  intemperate  in 
the  use  of  intoxicants,  or  is  a  vagrant,  then  by  his  mother 
or  legal  guardian.  An  executor,  who,  by  the  will  of  the 
father,  is  directed  to  bring  up  a  child  to  a  trade  or  calling, 
has  power  to  bind  by  indenture  in  like  manner  as  the  father 
might  have  done,  if  living.  If  a  child  is  illegitimate,  the 
mother  alone  has  power  to  bind  him.  If  a  minor  has  no 
parent  or  guardian  competent  to  act  for  him,  he  may  bind 
himself,  with  the  approval  of  the  superior  court  of  the  county 
wherein  he  resides.  If  the  mother  of  a  minor,  whether  legiti- 
mate or  illegitimate,  marries  after  his  birth,  she  cannot  bind 
him  without  the  approval  of  such  superior  court.  En. 
March  21,  1872.  Am'd.  1880,  5.  Eep.  1905,  560.  En.  1905, 
561. 

See  note  to  §  264,  ante. 

§  266.  Indenture  of  apprenticeship,  how  to  be  executed 
and  what  to  contain.  Every  indenture  of  apprenticeship 
must  be  executed  in  duplicate,  must  state  the  age  of  the 
minor,  and,  except  as  hereinafter  provided,  must  show  that 
he  consented  thereto,  must  be  signed  by  him  and  the  person 
binding  and  the  master,  and  when  made  with  the  approval 
of  the  superior  court,  a  certified  copy  of  the  order  of  ap- 
proval must  be  attached  to  the  indenture.  One  copy  of  the 
indenture  must  be  delivered  to  the  master  and  the  other 
kept  for  the  use  of  the  minor  by  his  parent  or  guardian  when 
executed  by  him,  or,  when  made  with  the  approval  of  the  . 
court,  it  must  be  filed  and  deposited  with  the  clerk  for 
safekeeping  for  the  use  of  the  minor.  No  indenture  binds 
the  minor  after  the  death  of  the  master,  but  thereafter  the 
minor  may  be  bound  anew.  Every  indenture  entered  into 
otherwise  than  as  herein  provided  is,  as  against  the  ap- 
prentice, absolutely  void.  En,  March  21,  1872.  Eep.  1905, 
560.     En.   1905,   561. 

See  note  to   §  264,  ante. 

§  267.     Jury  trial  as  to  facts  of  incapacity,  etc.,  of  parent. 
Facts   of  incapacity,   desertion,   habitual   intemperance,   and 
vagrancy  must  be  decided  in  said  court  by  a  jury,  before 
Civil  Code— 2 


§§  268-270  SUPPLEMENT.  14 

the  indenture  can  take  effect,  and  an  indorsement  on  the 
indenture,  under  seal  of  the  court,  that  the  charge  or  charges 
are  proved,  is  sufficient  evidence  of  the  mother's  power  to 
give  such  consent;  but  if  the  jury  does  not  find  the  charge  or 
charges  to  be  true,  the  person  at  whose  instance  such  proceed- 
ings may  have  been  had  must  pay  all  costs  attending  the 
same.  En.  March  21,  1872.  Kep.  1905,  5G0.  En.  1905,  561. 
See  note  to  §   264,  ante. 

§  268.  Apprenticing  of  poor  and  homeless  minors.  When 
a  minor  is  poor,  homeless,  chargeable  to  the  county  or  state, 
or  an  outcast  who  has  no  visible  means  of  obtaining  an  hon- 
est livelihood,  the  superior  court  may,  with  his  consent,  bind 
him  as  an  apprentice  during  his  minority.  Proceedings 
therefor  may  be  instituted  by  any  citizen,  and  no  fee  must 
be  charged  by  any  officer  for  any  act  in  connection  there- 
with. In  all  indentures  by  the  court  for  binding  out  an 
orphan  or  homeless  minor  as  an  apprentice  there  must  be 
inserted,  among  other  things,  a  clause  to  the  follovv^ing  ef- 
fect: that  the  master  to  whom  such  minor  is  bound  must 
cause  him  to  be  taught  to  read  and  write  and  the  ground 
rules  of  arithmetic,  ratio  and  proportion,  and  must  give  him 
the  requisite  instruction  in  the  different  branches  of  his 
trade  or  calling,  and,  at  the  expiration  of  his  term  of  ser- 
vice, must  give  him  or  her  fifty  dollars  in  gold,  and  two 
whole  new  suits  of  clothes,  to  be  worth  in  the  aggregate  at 
least  sixty  dollars  gold.  En.  March  21,  1872.  Eep.  1905, 
560,     En.  1905,  561. 

See  note  to  §   264,  ante. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  de- 
liver him  money  and  other  property  therein.  A  master  must 
not  remove  his  apprentice  out  of  the  state,  and  must  pay 
and  deliver  to  him  the  money,  clothes,  and  other  property 
to  which  he  is  entitled  under  the  indenture  of  apprentice- 
ship, to  be  held  by  him  as  his  sole  property.  En.  March  21, 
1872.     Eep.  1905,  560.     En.  1905,  562. 

See  note  to   §    264,   ante. 

§  270.  Duty  to  inquire  into  the  treatment  of  minor  ap- 
prentices. Parents  and  guardians  and  such  court  must,  from 
time  to  time,  inquire  into  the  treatment  of  children  bound 
by  them  respectively,  or  with  their  approval,  and  the  judges 


15.  CIVIL  CODE.  §§  271-273 

of  such  courts  are  responsible  for  the  charge  of  apprentices 
bound  by  a  court  or  with  its  approval,  and  must  defend  them 
from  all  cruelty,  neglect,  breach  of  contract,  or  misconduct 
on  the  part  of  their  masters.  En.  March  21,  1872.  Bep. 
1905,  560.     En.  1905,  562. 

See  note  to   §   264,  ante. 

§  271,  Hearing  of  complaints  of  apprentices.  The  su- 
perior court  must  hear  the  complaints  of  apprentices  who 
reside  within  the  county  against  their  masters,  alleging  un- 
deserved or  immoderate  correction,  insufficient  allowance  of 
food,  raiment,  or  lodging,  want  of  instruction  in  the  different 
branches  of  their  trade  or  calling,  or  that  they  are  in  dan- 
ger of  being  removed  out  of  the  state,  or  any  violation  of 
the  indenture  of  apprenticeship,  and  the  court  must  hear  and 
determine  such  case  and  make  such  order  therein  as  will  re- 
lieve the  party  in  the  future.  En.  March  21,  1872.  Eep. 
1905,  560.     En.   1905,  562. 

See  note  to  §   264,  ante. 

§  272.  Power  of  court  to  discharge  apprentice  from  ap- 
prenticeship. The  superior  court  has  power,  where  circum- 
stances require  it,  to  discharge  an  apprentice  from  his  ap- 
prenticeship, and,  in  case  any  money  or  other  thing  has  been 
paid  or  contracted  to  be  paid  by  either  party  in  relation 
to  the  apprenticeship,  the  court  must  make  such  order  con- 
cerning the  same  as  seems  just  and  reasonable.  If  the  ap- 
prentice so  discharged  was  originally  bound  by  the  superior 
court,  it  must,  if  found  necessary,  again  bind  such  minor, 
if  under  age.  En.  March  21,  1872.  Eep.  1905,  560.  En. 
1905,  562. 

See  note  to   §   264,   ante. 

§  273.     Liability  of  master  for   breach    of   his    covenant. 

Every  master  is  liable  to  an  action  on  the  indenture  for  a 
breach  of  any  covenant  thereof  on  hig  part.  All  damages 
recovered  in  such  action,  after  deducting  necessary  charges 
in  its  prosecution,  belong  to  the  minor,  and  must  be  applied 
and  appropriated  to  his  use  by  the  person  recovering  it  in 
his  behalf,  and  must  be  paid  to  the  minor,  if  a  male,  at 
the  age  of  twenty-one  years,  and  if  a  female,  at  the  age  of 
eighteen  years.  If  no  action  is  brought  during  the  minority 
of  the  apprentice,  it  may  be  commenced  by  him  in  his  own 


§§  274,  275  SUPPLEMENT,  16 

name  at  any  time  within  two  years  after  his  coming  of  age. 
En.  March  21,  1872.  Am'd.  1880,  6.  Eep.  1905,  560.  En. 
1905,   562. 

See  note  to  §   264,  ante. 

§  274.  Liability  of,  and  proceedings  against,  apprentice 
guilty  of  gross  misbehavior.  An  apprentice  who  is  guilty  of 
any  gross  misbehavior,  or  refusal  to  do  his  duty,  or  willful 
neglect  thereof,  is  liable  to  the  complaint  of  his  master  in 
the  superior  court  of  the  county  wherein  the  apprentice  re- 
sides. Snch  complaint  must  set  forth  the  circumstances  of 
the  case,  and  have  attached  thereto  a  citation,  signed  by  the 
clerk  of  the  court,  requiring  him  and  all  persons  who  have 
covenanted  in  his  behalf  to  appear  and  answer  the  complaint 
within  ten  days  after  the  service  thereof.  The  complaint 
and  citation  must  be  served  in  the  manner  required  for  serv- 
ing civil  process.  When  the  parties  have  answered,  or  when, 
though  they  have  not  answered,  the  time  therefor  allowed 
after  the  service  of  the  complaint  has  expired,  the  court 
must  proceed  to  hear  and  determine  the  cause,  and,  if  the 
evidence  warrants  it,  may  render  judgment  that  the  master 
be  discharged  from  the  contract  of  apprenticeship  and  for 
costs  of  suit.  iSuch  costs  may  be  recovered  from  the  parent 
or  guardian  of  the  minor,  if  there  is  any  who  signed  the 
indenture,  and  execution  therefor  may  issue  accordingly.  If 
there  is  no  parent  or  guardian  liable  for  such  cost,  execu- 
tion may  be  issued  therefor  against  the  minor,  or  the  amount 
thereof  may  be  recovered  in  an  action  against  him  after 
he  arrives  at  full  age.  He  is  also  liable  to  the  master  in  an 
action  on  the  indenture  for  the  breach  of  any  covenant  on 
the  part  of  the  apprentice  contained  therein,  committed 
fore  the  master  was  discharged  from  the  indenture.  En. 
March  21,  1872.     Eep.  1905,  560.     En.  1905,  562. 

See  note  to  §  264,  ante. 

§  275.  Enticing  away  apprentices  and  liability  for.  It  is 
unlawful  for  any  person  to  entice,  counsel,  or  persuade  to 
run  away  any  apprentice,  or  to  harbor,  or  conceal  him, 
knowing  him  to  be  a  runaway.  Any  party  so  offending  is 
guilty  of  a  misdemeanor,  and  may  be  fined  not  more  than 
one  hundred  dollars,  to  be  recovered  by  the  master  in  any 
court  having  jurisdiction.  En.  March  21,  1872.  Eep.  1905, 
560.     En.  1905,  563. 

See  note  to  §  264,  ante. 


17  CIVIL  CODE,  §§  276-290 

§  276.  Release  of  master  removing  out  of  state  or  quit- 
ting business.  Whenever  any  master  wishes  to  remove  out 
of  the  state,  or  to  quit  his  trade  or  business,  he  must  ap- 
pear with  his  apprentice  before  the  superior  court  of  the 
county  in  which  the  latter  resides,  and  if  the  court  is  satis- 
fied that  the  master  has  done  justice  to  the  apprentice  for  the 
time  he  has  had  charge  of  him,  the  court  has  power  to  dis- 
charge the  master  from  the  indenture  and  to  again  bind  the 
apprentice,  if  necessary.  En.  March  21,  1872,  Kep,  1905, 
560,     En.  1905,  563. 

See  note  to  §  264,  ante. 

§  284.     Supp.   Cal,   Kep.   Cit.     144,   334. 

§  285.  Corporations,  how  formed.  Private  corporations 
may  be  formed  by  the  voluntary  association  of  any  three 
or  more  persons  in  the  manner  prescribed  in  this  article.  A 
majoritv  of  such  persons  must  be  residents  of  this  state.  En, 
luarch  21,  1872.     Am'd.  1873-4,  197;   1905,  502, 

§  286.     Supp.  Cal.  Eep.  Cit.     144,  594. 

§  290.  Articles  must  set  forth.  Articles  of  incorporation 
must  be  prepared,  setting  forth: 

1.  Name.     The   name   of   the   incorporation. 

2.  Purposes.     The  purpose  for  which  it  is  formed. 

3.  Place  of  business.  The  place  where  its  principal  busi- 
ness is   to   be   transacted. 

4.  Term  of  existence.  The  term  for  which  it  is  to  exist, 
not   exceeding  fifty  years. 

5.  Number  of  directors.  The  number  of  its  directors  or 
trustees,  which  shall  not  be  less  than  three,  and  the  names 
and  residence  of  those  who  are  appointed  for  the  first  year; 
provided,  that  the  corporate  powers,  business,  and  property 
of  corporations  formed,  or  to  be  formed  for  the  pur- 
pose of  erecting  and  managing  halls  and  buildings  for 
the  meetings  and  accommodations  of  several  lodges  or 
societies  of  any  benevolent  or  charitable  order  or  or- 
ganization, and  in  connection  therewith  the  leasing  of 
stores  and  offices  in  such  building  or  buildings  for 
other  purposes,  may  be  conducted,  exercised,  and  con- 
trolled by  a  board  of  not  less  than  three  or  more  than  fifty 
directors,  to  be  chosen  from  among  the  stockholders  of  such 
corporation,  or  among  the  members  of  such  order  or  organi- 


§  2901^  SUPPLEMENT.  18 

zation;  and  provided,  also,  that  at  any  time  during  the  ex- 
istence of  corporations  for  profit,  other  than  those  of  the 
character  last  hereinabove  provided  for,  the  numbers  of  the 
directors  may  be  increased  or  diminished,  by  a  majority  of 
the  stocliholders  of  the  corporation,  to  any  number  not  less 
than  three,  who  must  be  members  of  the  corporation;  where- 
upon a  certificate  stating  the  number  of  directors  must  be 
filed,  as  provided  for  in  section  two  hundred  and  ninety- 
isix  for  the  filing  of  the  original  articles  of  incorporation; 
and  provided,  also,  that  the  corporate  powers,  business  and 
property  of  corporations  formed  or  to  be  formed  for  social 
purposes,  and  not  directly  for  profit,  may  be  exercised,  con- 
ducted, and  controlled  by  a  board,  consisting  of  such  num- 
ber of  directors  as  may  be  in  the  constitution  or  by-laws 
provided;  and  corporations  so  formed  may,  in  their  constitu- 
tion or  by-laws,  provide  for  the  length  of  time  that  the  di- 
rectors, or  any  number  thereof,  shall  act,  and  may,  in  like 
manner  provide  that  certain  directors,  or  a  certain  number 
of  the  board  of  directors,  to  be  selected  by  the  corporation 
or  the  board  of  directors,  in  the  mode  and  manner  provided 
in  the  constitution  or  by-laws,  shall  act  for  any  specified 
length  of  time,  or  otherwise,  as  shall  be  in  the  constitution 
or   by-laws   set   forth. 

6.  Capital  stock.  The  amount  of  its  capital  stock,  and  the 
number  of  shares  into  which  it  is  divided. 

7.  Capital  stock  subscribed.  If  there  is  a  capital  stock, 
the  amount  actually  subscribed,  and  by  whom.  En.  March 
21,  1872.  Am'd.  1873-4,  199;  1875-6,  70;  1880,  11;  1891,  285; 
1900-01,  322;  1905,  502. 

§  2901^.  Corporatio"is  not  to  use  the  word  "trust"  as 
part  of  corporate  name.  No  corporation  hereafter  formed 
shall  use  the  word  "trust"  or  "trustee"  as  a  part  of  its 
corporate  name  unless  it  shall  be  authorized  by  its  articles 
of  incorporation  to  act  as  executor,  administrator,  guardian, 
assignee,  receiver,  depositary  or  trustee,  nor  shall  any  cor- 
poration hereafter  formed  accept  or  execute  any  trust  un- 
less it  shall  have  complied  with  all  the  provisions  of  "An 
act  authorizing  certain  corporations  to  act  as  executor,  ancl 
in  other  capacities,  and  to  provide  for  and  regulate  the  ad- 
ministration of  trusts  by  such  corporation,"  approved  April 
6th,  1891,  and  the  amendment  thereto  approved,  April  1st, 
1897.     En.  Stats.  1905,  251. 


19  CIVIL  CODE.  §§  291-299 

§  291,     Supp.  Cal.  Eep.  Cit.  142,  227. 

§  292.  Articles  subscribed  and  acknowledged.  The  arti- 
cles of  incorporation  mnst  be  subscribed  by  three  or  more 
persons,  a  majority  of  whom  must  be  residents  of  this  state, 
and  acknowleds^ed  by  each  before  some  officer  authorized  to 
take  and  certify  acknowledgments  or  conveyances  of  real 
property.  En,  March  21,  1872.  Am'd.  1373-4,  199;  1905, 
503. 

§  296,     Supp.  Cal.  Eep.  Cit.     142,  2S1. 

§  299.  Corporations  holding  property  in  any  county  other 
than  where  original  articles  are  filed,  must  file  certified  ar- 
ticles with  county  clerk.  No  corporation  hereafter  formed 
must  purchase,  locate,  or  hold  property,  in  any  county  in 
this  state,  other  than  the  county  in  which  its  original  ar- 
ticles of  incorporation  are  filed,  without  filing  a  copy  of  the 
copy  of  its  articles  of  incorporation  filed  in  the  office  of  the 
secretary  of  state,  duly  certified  by  such  secretary  of  state, 
in  the  office  of  the  county  clerk  of  the  county  in  which  such 
property  is  situated,  within  sixty  daj-s  after  such  purchase 
or  location  is  made.  Every  corporation  now  in  existence, 
whether  formed  under  the  provisions  of  this  code  or  not, 
must,  within  ninety  days  after  the  passage  of  this  section, 
file  such  certified  copy  of  the  copy  of  its  articles  of  incor- 
poration in  the  office  of  the  county  clerk  of  every  count}'' 
in  this  state  in  which  it  holds  any  property,  except  the 
county  where  the  original  articles  of  incorporation  are  filed; 
and  if  any  corporation  hereafter  acquires  any  property  in 
a  county  other  than  that  in  which  it  now  holds  property,  it 
■must,  within  ninety  days  thereafter,  file  with  the  clerk  of 
such  county  such  certified  copy  of  the  copy  of  its  articles 
of  incorporation.  The  copies  filed  with  the  several  county 
clerks,  and  certified  copies  thereof,  have  the  same  force  and 
effect  in  evidence  as  the  originals.  Any  corporation  failing 
to  comply  with  the  provisions  of  this  section  cannot  maintain 
or  defend  any  action  or  proceeding  in  relation  to  such  prop- 
erty, its  rents,  issues,  or  profits,  until  such  articles  of  incor- 
poration, and  such  certified  copy  of  its  articles  of  incorpo- 
ration, and  such  certified  copy  of  the  copy  of  its  articles  of 
incorporation,  are  filed  at  the  places  directed  by  the  general 
law  and  this  section;  provided,  that  all  corporations  are  lia- 


§§  301-304  SUPPLEMENT,  20 

fcle  in  damages  for  any  and  all  loss  that  may  arise  by  the 
failure  of  such  corporation  to  perform  any  of  the  foregoing 
duties  within  the  time  mentioned  in  this  section;  and  pro- 
vided further,  that  the  said  damages  may  be  recovered  in  an 
action  brought  in  any  court  of  this  state  of  competent  juris- 
diction, by  any  party  or  parties  suffering  the  same.  En. 
March  21,  1872.  Eep.  1873-4,  200.  En.  ^tats.  1S75-6,  71. 
Am'd.  1877-8,  76;   1880,  13;   1905,  556. 

299.  The  change  consists  in  the  insertion  of  the  words  "other 
than  the  county  in  which  its  original  articles  of  incorpora- 
tion  are   filed"    after    "state." — Code   Commissioner's   Note. 

§  301,     Supp.   Cal.  Eep.   Cit.     145,  702. 

§  302.  Election  of  directors;  notice  of.  The  direc- 
tors of  a  corporation  must  be  elected  annually  by  the 
stockholders  or  members,  and  if  no  provision  is  made  in  the 
by-laws  for  the  time  of  election,  the  election  must  be  held 
on  the  first  Tiiesday  in  June.  Notice  of  such  election  must 
be  given  as  prescribed  in  section  three  hundred  and  one.  En, 
March  21,  1872.     Am'd.  1905,  557. 

303.  The  change  consists  in  the  omission  of  the  words  "and.  the 
right  to  vote  determined"  after  "given."  The  right  to 
vote  is  controlled  by  section  307. — Code  Commissioner's 
Note. 

§  304.  By-laws.  All  by-laws  adopted  must  be  certified  by 
a  majority  of  the  directors  and  secretary  of  the  corporation, 
and  copied  in  a  legible  hand,  in  some  iDook  kept  in  the  of- 
fice of  the  corporation,  to  be  known  as  the  "book  of  by- 
laws," and  the  book  must  then  be  open  to  the  inspection 
of  the  public  during  office  hours  each  day  except  holidays. 
The  by-laws  may  be  repealed  or  amended,  or  new  by-laws 
may  be  adopted,  at  the  annual  meeting,  or  at  any  other  meet- 
ing of  the  stockholders  or  members,  called  for  that  purpose 
by  the  directors,  by  a  vote  representing  two  thirds  of  the 
subscribed  stock,  or  by  two  thirds  of  the  members.  The 
written  assent  of  the  holders  of  two  thirds  of  the  stock,  or 
two  thirds  of  the  members  if  there  is  no  capital  stock,  is 
effectual  to  repeal  or  amend  any  by-law,  or  to  adopt  addi- 
tional by-laws.  The  power  to  repeal  and  amend  the  by- 
laws, and  adopt  new  by-laws,  may,  by  a  similar  vote  at  any 
such  meeting,  or  similar  written  assent,  be  delegated  to  the 
board  of  directors.     The  power,  when  delegated,  may  be  re- 


21  CIVIL  CODE.  §  305 

voked  bv  a  similar  vote,  at  any  regular  meeting  of  the 
stockholders  or  members.  Whenever  any  amendment  or  new 
by-law  is  adopted,  it  must  be  copied  in  the  book  of  by-laws 
■with  the  original  by-laws,  and  immediately  after  them.  If 
any  by-law  is  repealed,  the  fact  of  repeal,  with  the  date 
of  the  meeting  at  which  the  repeal  was  enacted,  or  written 
assent  was  filed,  must  be  stated  in  said  book.  Until  copied 
or  stated  as  hereinbefore  required,  no  by-law,  nor  any  amend- 
ment or  repeal  thereof,  can  be  enforced  against  any  person, 
other  than  the  corporation,  not  having  actual  notice  thereof. 
En.  March  21,  1S72.  Am'd.  1S73-4,  201;  18S5,  130;  1905, 
557. 

304.  The  provisions  of  the  present  section,  declaring  that  no  by- 
law or  any  amendment  thereof  shall  take  effect  until  copied 
in  the  book  of  by-laws,  is  amended  so  as  to  permit  by-laws 
and  amendments  thereof,  which  have  been  duly  passed,  to 
be  treated  as  valid  and  enforceable  against  the  corpora- 
tion and  persons  having  notice  thereof,  regardless  of 
whether  or  not  they  have  been  copied  into  the  proper  book. 
It  has  often  happened  that  by-laws  have  been  published 
and  generally  acted  upon  by  the  corporation,  and  by  others, 
and  then  their  effect  has  been  sought  to  be  avoided  on  ac- 
count of  the  failure  of  the  proper  officer  to  perform  his  duty 
of  copying  them  as  the  Code  directs.  The  change  consists 
in  the  addition  of  the  last  sentence. — Code  Commissioner's 
Kote. 

§  305.     Corporate  powers  to  "be  exercised  by  board  of  di- 
rectors; directors,  qualifications  of;  quorum;  vacancies.     The 

corporate  powers,  business  and  property  of  all  corporations 
formed  under  this  title  must  be  exercised,  conducted,  and  con- 
trolled by  a  board  of  not  less  than  three  directors,  to  be 
elected  from  among  the  holders  of  stock;  or  where  there  is 
no  capital  stock,  then  from  the  members  of  such  corporations; 
except  that  corporations  formed  or  to  be  formed  for  the  pur- 
pose of  erecting  and  managing  halls  and  buildings  for  the 
meetings  and  accommodation  of  several  lodges  or  societies 
of  any  benevolent  or  charitable  order  or  organization,  and 
in  connection  therewith,  the  leasing  of  stores  and  ofiices  in 
such  building  or  buildings  for  other  purposes,  the  corporate 
powers,  business,  and  property  thereof  may  be  conducted,  ex- 
ercised, and  controlled  by  a  board  not  less  than  three  or  more 
than  fifty  directors,  to  be  chosen  from  among  the  stock- 
holders of  such  corporation  or  from  among  the  members  of 
such  order  or  organization.  A  majority  of  the  directors  must 
be  in  all  cases  residents  of  this  state.  Directors  of  corpora- 
tions for  profit  must  be  holders  of  stock  therein  to  an  amount 


§§  308,  309  SUPPLEMENT.  22 

to  be  fixed  by  the  by-laws  of  the  corporation.  Directors  of 
all  other  corporations  must  be  members  thereof.  Unless  a 
quorum  is  present  and  acting  no  business  performed  or  act 
done  is  valid  as  against  the  corporation.  Whenever  a  va- 
cancy occurs  in  the  office  of  director,  unless  the  by-laws  of 
the  corporation  otherwise  provide,  such  vacancy  must  be 
filled  by  an  appointee  of  the  board.  En.  March  21,  1872. 
Am'd.  i875-6,  71;  1900-01,  308;  1905,  503. 

§  308.     Supp.  Cal.  Eep.  Cit.  145,  364. 

§  309.  Dividends;  limit  as  to  debt;  withdrawal;  increase 
or  decrease  of  capital  stock.  The  directors  of  corpltrations 
must  not  make  dividends,  except  from  the  surplus  profits  aris- 
ing from  the  business  thereof;  nor  must  they  create  any 
debts  beyond  their  subscribed  capital  stock;  nor  must  they 
divide,  withdraw,  or  pay  to  the  stockholders,  or  any  of  them, 
any  part  of  the  capital  stock,  except  as  hereinafter  provided, 
nor  reduce  or  increase  the  capital  stock,  except  as  herein 
specially  provided.  For  a  violation  of  the  provisions  of  this 
section,  the  directors  under  whose  administration  the  same 
may  have  happened  (except  those  who  may  have  caused  their 
dissent  therefrom  to  be  entered  at  large  on  the  minutes  of 
the  directors  at  the  time,  or  were  not  present  when  the  same 
did  happen)  are,  in  their  individual  or  private  capacity,, 
jointly  and  severally  liable  to  the  corporation,  and  to  the 
creditors  thereof,  to  the  full  amount  of  the  capital  stock  so 
divided,  withdrawn,  paid  out,  or  reduced,  or  debt  contracted; 
and  no  statute  of  limitation  is  a  bar  to  any  suit  against  such 
directors  for  any  sums  for  which  they  are  liable  by  this  sec- 
tion; provided,  however,  that  where  a  corporation  has  been 
heretofore  or  may  hereafter  be  formed  for  the  purpose^ 
among  other  things,  of  acquiring,  holding,  and  selling  real 
estate,  water,  and  water  rights,  the  directors  of  such  cor- 
poration may,  with  the  consent  of  stockholders  representing 
two  thirds  of  the  capital  stock  thereof,  given  at  a  meeting 
called  for  that  purpose,  divide  among  the  stockholders  the 
land,  water,  or  water  rights  so  by  such  corporation  held,  in 
the  proportions  to  which  their  holdings  of  such  stock  at  the 
time  of  such  division  entitle  them.  All  conveyances  made 
by  the  corporation  in  pursuance  of  this  section  must  be  made 
and  received  subject  to  the  debts  of  such  corporation  exist- 
ing at  the  date  of  the  conveyance  thereof.  Nothing  herein 
prohibits  a  division  and  distribution  of  the  capital  stock  of 


23  CIVIL   CODE.  §  310 

any  corporation  which  remains  after  the  payment  of  all  its 
debts,  upon  its  dissolution,  or  the  expiration  of  its  term  of 
existence.     En.  March  21,  1872.     Am'd.  1891,  468;  1905,  558. 

309.  The    change    consists    in    the    omission    of    the    words,     "nor 

must  they  divide,  withdraw,  or  pay  to  the  stockholders,  or 
any  of  them,  any  part  of  the  capital  stock,"  where  those 
words  first  occur,  and  in  the  omission  of  the  words  "in 
the  event  of  its  dissolution,"  after  "thereof."  The  rea- 
son for  the  omission  of  the  words  first  above  alluded  to  is 
that  by  some  clerical  error  they  occur  twice  in  the  section. 
The  words  "in  the  event  of  its  dissolution"  are  omitted 
because  their  presence  makes  it  impossible  to  enforce  the 
liability  against  the  directors  unless  the  corporation  is  first 
dissolved,  which  could  not  have  been  the  intention  of  the 
legislature. — Code    Commissioner's    Note. 

§  310.  Removal  of  directors.  The  board  of  directors  may 
be  removed  from  office  by  a  vote  of  two  thirds  of  the  mem- 
bers, or  of  stockholders  holding  two  thirds  of  the  capital 
stock,  at  a  genei'al  meeting  held  after  previous  notice  of  the 
time  and  place,  and  of  the  intention  to  propose  such  removal. 
Meetings  of  stockholders  for  this  purpose  may  be  called  by 
the  president,  or  by  a  majority  of  the  directors,  or  by  mem- 
bers or  stockholders  holding  at  least  one  half  of  the  votes. 
Such  calls  must  be  in  writing,  and  addressed  to  the  secre- 
tary, who  must  thereupon  give  notice  of  the  time,  place,  and 
object  of  the  meeting,  and  by  whose  order  it  is  called.  If 
the  secretary  refuses  to  give  the  notice,  or  if  there  is  none, 
the  call  may  be  addressed  directly  to  the  members  or  stock- 
holders, and  be  served  as  a  notice,  in  which  case  it  must 
specify  the  time  and  place  of  meeting.  The  notice  must  be 
given  in  the  manner  provided  in  section  three  hundred  and 
one  of  this  title,  unless  other  express  provision  has  been 
made  therefor  in  the  by-laws.  In  case  the  board  of  directors 
is  so  removed,  a  new  board  may  be  elected  at  the  same 
meeting.     En.  March  21,  1872.     Am'd.  1905,  558. 

310.  The  amendment,   while  it  authorizes   the  removal  of  the  whole 

board  of  directors  by  a  two-thirds  vote  of  the  members  or 
stockholders,  denies  the  power  to  remove  less  than  the 
whole  number  by  such  vote.  The  reason  for  this  is  that 
by  the  system  of  cumulative  voting  sanctioned  by  section 
307,  a  minority  may  obtain  representation  in  the  board  of 
directors :  if  so,  a  director  elected  to  represent  a  minority 
of  one  third  ought  not  to  be  removed  by  the  subsequent 
vote  of  the  other  two  thirds,  and  the  system  of  cumulative 
voting  and  minority  representation  thus  made  inefifective. 
The  first  sentence  only  is  changed. — Code  Commissioner's 
Note. 


§§311,312  SUPPLEMENT.  24 

§  311.  Justice  of  the  peace  to  preside  at  meeting  of  cor- 
poration, when.  Whenever,  from  any  cause,  there  is  no  per- 
son authorized  to  call  or  to  preside  at  a  meeting  of  a  cor- 
poration, any  justice  of  the  peace  of  the  county  where  such 
corporation  is  established  may,  on  written  application  of 
three  or  more  of  the  stockholders  or  of  the  members  thereof, 
issue  a  warrant  to  one  of  the  stockholders  or  members,  di- 
recting him  to  call  a  meeting  of  the  corporation,  by  giving 
the  notice  required,  and  the  justice  may,  in  the  same  war- 
rant, direct  such  person  to  preside  at  such  meeting  until  a 
clerk  is  chosen  and  qualified,  if  there  is  no  other  officer  pres- 
ent legally  authorized  to  preside  thereat.  The  application 
of  a  number  of  stockholders  less  than  three,  but  holding  a 
majority  of  the  capital  stock,  has  the  same  effect  as  an  ap- 
plication by  three  or  more  stockholders  or  members.  En. 
March  21,  1872.     Am'd.  1905,  559. 

311.  By  the   amendment  proposed  the  holders   of  a  majority  of   the 

stock,  though  their  number  is  less  tlian  three,  are  authorized 
to  apply  to  the  justice  to  issue  a  warrant  for  an  election. 
The  change  consists  in  the  addition  of  the  last  sentence. — 
Code   Commissioner's   Note. 

§  312.  Majority  of  capital  stock  must  be  represented  at 
elections.  At  all  elections  or  votes  had  for  any  purpose 
there  must  be  a  majority  of  the  subscribed  capital  stock,  or 
of  the  members,  represented,  either  in  person  or  by  proxy 
in  writing.  Every  person  acting  therein,  in  person  or  by 
proxy  or  representative,  must  be  a  member  thereof,  or  a  stock- 
holder having  stock  in  his  own  name  on  the  stock  books  of 
the  corporation  at  least  ten  days  prior  to  the  election.  Any 
vote  or  election  had  other  than  in  accordance  with  the  pro- 
visions of  this  article  is  voidable  at  the  instance  of  absent 
or  any  stockholders  or  members,  and  may  be  set  aside  by 
petition  to  the  superior  court  of  the  county  where  the  same 
is  held.  Any  regular  or  called  meeting  of  the  stockholders 
or  members  may  adjourn  from  day  to  day,  or  from  time  to 
time,  if  for  any  reason  there  is  not  present  a  majority  of  the 
subscribed  stock  or  members,  or  no  election  had — such  ad- 
journment and  the  reasons  therefor  being  recorded  in  the 
journal  of  proceedings  of  the  board  of  directors.  Eu.  March 
21,  1872.     Am'd.  1877-8,  79;  1905,  559. 

312.  The  change  consists  in  the  substitution  of  the  words  "superior 

court''  in  place  of  "district  court,"  and  in  the  omission 
of  the  words  "bona  fide"  before  "stockholder."  For  the 
purposes  of  election,   a  person  appearing  upon  the  books  of 


25  CIVIL  CODE,  §§  312-314 

the  corporation  to  be  a  stockholder  should  be  permitted 
to  vote,  and  election  officers  should  not  be  vested  with  au- 
thority to  deny  such  a  stockholder  the  right  to  vote,  or  to 
claim  that  for  some  reason  he  is  not  a  bona  fide  stock- 
holder. (See  Smith  v.  S.  F.  &  N.  P.  Ry.  Co.,  115  Cal. 
584). — Code  Commissioner's  Note. 
This  amendment  was  approved  March  21,  1905,  and  the  following 
amendment    of    the    same    section    was    approved    March    22,    1905: 

§  312.     Corporations;  election  in,  majority  of  stock  must 
"be  represented;  election  set  aside,  when  and  by  whom.     At 

all  elections  or  votes  had  for  any  purpose  in  corporations 
formed  for  profit  there  must  be  a  majority  of  the  subscribed 
capital  stock  or  of  the  members  represented,  either  in  per- 
son or  by  proxy  in  writing;  provided^  that  in  all  instances 
of  corporations  formed  for  purposes  other  than  profit  the 
by-laws  shall  provide  the  number  of  members  or  stockholders 
that  shall  constitute  a  quorum  for  the  transaction  of  busi- 
ness. Every  person  acting  therein  (in  person  or  by  proxy 
or  representative),  must  be  a  member  thereof  or  a  bona  fide 
stockholder,  having  stock  in  his  own  name  on  the  stock- 
books  of  the  corporation  at  least  ten  days  prior  to  the  elec- 
tion. Any  vote  or  election  had  other  than  in  accordance 
with  the  provisions  of  this  article  is  voidable  at  the  instance 
of  absent  (or  any)  stockholders  or  members,  and  may  be 
set  aside  by  petition  to  the  superior  court  of  the  county 
where  the  same  was  held.  Any  regular  or  called  meeting 
of  the  stockholders  or  members  may  adjourn  from  day  to 
day,  or  from  time  to  time,  if  for  any  reason  there  is  not 
present  a  majority  of  the  subscribed  stock  or  members,  or 
no  election  had,  such  adjournment  and  the  reasons  therefor 
being  recorded  in  the  journal  of  proceedings  of  the  board 
of  directors.  En.  March  21,  1872.  Am'd.  1877-8,  79;  1905, 
787. 

This    amendment    was    approved    March    22,    1905,    the    preceding 
amendment  of  the  same  section  being  approved  March  21,  1905. 

§  314.  Election  not  taking  place  on  appointed  day.  If 
from  any  cause  an  election  does  not  take  place  on  the  day 
appointed  by  law  or  the  by-laws,  or  otherwise,  it  may  be 
held  on  any  day  thereafter  as  is  provided  for  in  such  by- 
laws, or  to  which  such  election  may  be  adjourned  or  ordered 
by  the  directors.  If  an  election  has  not  been  held  at  the 
appointed  time,  and  no  adjourned  or  other  meeting  for  the 
purpose  has  been  ordered  by  the  directors,  a  meeting  may 
Civil  Code— 3 


§§  315-321b  SUPPLEMENT.  26 

be  called   by  the  stockholders   as  provided  in   section  three 
Ihundred    and   ten.     En.   March   21,   187S.     Am'd.   190o,   559. 

314.  The  design  of  the  ameiulment  is  to  extend  the  provisions  of  the 

section  to  all  elections  howsoever  authorized,  and  for  tliis 
purpose  the  words  "bylaw"  are  inserted  after  "ap- 
pointed," "in"  is  omitted  after  "appointed,"  and  "or 
otherwise"  are  inserted  after  "by-laws."— Code  Commis- 
sioner's Note. 

§  315.  New  election  may  be  ordered  by  the  court.  Upon 
the  application  of  any  person  or  body  corporate  ag^grieved 
by  any  election  held  by  any  corporate  body,  the  superior 
court  of  the  county  in  which  such  election  is  held  must 
proceed  forthwith  to  hear  the  allegations  and  proofs  of  the 
parties,  or  otherwise  inquire  into  the  matters  of  complaint, 
and  thereupon  confirm  the  election,  order  a  new  one,  or 
direct  such  other  relief  in  the  premises  as  accords  with 
right  and  justice.  Upon  filing  the  petition,  and  before  any 
further  proceedings  are  had  under  this  section,  five  days' 
notice  of  the  hearing  must  be  given,  under  the  direction  of 
the  court  or  the  judge  thereof,  to  the  adverse  party,  or  those 
to  be  affected  thereby.  En.  March  21,  1872.  Am'd.  1877-8, 
79;  1905,  560. 

315.  The    change    consists    in    the    substitution    of    the    words     "su- 

perior court  of  the  county"  for  "district  court  of  the  dis- 
trict."— Code    Commissioner's    Note. 

§  321.     Supp.    Cal.    Eep.    Cit.     140,    105. 

§  321&.  Stockholders'  meetings,  who  may  vote  at; 
proxies.  At  all  meetings  of  stockholders  of  corporations 
organized  under  the  laws  of  this  state,  or  in  the  case  of 
corporations  having  no  capital  stock,  then  at  all  meetings 
of  the  members  of  such  corporation,  only  the  stockholders 
or  members  actually  present  shall  be  entitled  to  vote  on 
any  proposition,  including  the  election  of  directors  and  other 
officers  of  the  corporation,  unless  proxies  from  absent  or 
nonattending  stockholders  or  members  shall  be  held  by  some 
person  or  persons  present  at  such  meeting  and  shall  be  exe- 
cuted in  accordance  with  the  provisions  of  this  section. 
Every  such  proxy  must  be  executed  in  writing  by  the  mem- 
ber or  stockholder  himself,  or  by  his  duly  authorized  attor- 
ney. No  proxy  heretofore  given  or  made  shall  be  valid 
after  the  expiration  of  eleven  months  from  the  passage  of 
this  act,  unless  the  member  or  stockholder  executing  it  shall 


27  CIVIL  CODE.  §  322 

have  specified  therein  the  length  of  time  for  which  such 
proxy  is  to  continue  in  force,  which  must  be  for  some  lim- 
ited period,  and  in  no  ease  to  exceed  seven  years  from 
the  date  of  the  execution  of  such  proxy.  No  proxy  here- 
after to  be  given  or  made  shall  be  valid  after  the  expira- 
tion of  eleven  months  from  the  date  of  its  execution,  unless 
the  member  or  stockholder  executing  it  shall  have  specified 
therein  the  length  of  time  for  which  such  proxy  is  to  con- 
tinue in  force,  which  must  be  for  some  limited  period,  and 
in  no  case  to  exceed  seven  years  from  the  date  of  the  exe- 
cution of  such  proxy.  Every  proxy  shall  be  revocable  at 
the  pleasure  of  the  person  executing  it;  but  a  corporation 
having  no  capital  stock  may  prescribe  in  its  by-laws  the 
persons  who  may  act  as  proxies  for  members,  and  the  length 
of  time  for  which  such  proxies  may  be  executed.  En.  Stats. 
1905,  22. 

§  322.    Liability    of    stockholder  in  a  corporation.     Each 

stockholder  of  a  corporation  is  individually  and  personally 
liable  for  such  proportion  of  all  its  debts  and  liabilities 
'contracted  or  incurred  during  the  time  he  was  a  stockholder 
as  the  amount  of  stock  or  shares  owned  by  him  bears  to  the 
whole  of  the  subscribed  capital  stock  or  shares  of  the  corpor- 
ation. Any  creditor  of  the  corporation  may  institute  joint 
or  several  actions  against  any  of  its  stockholders,  for  the 
proportion  of  his  claim  payable  by  each,  and  in  such  action 
the  court  must  ascertain  the  proportion  of  the  claim  or  debt 
for  which  each  defendant  is  liable,  and  a  several  judgment 
must  be  rendered  against  each,  in  conformity  therev.'ith.  If 
any  stockholder  pays  his  proportion  of  any  debt  due  from 
the  corporation,  incurred  while  he  was  such  stockholder^  he 
is  relieved  from  any  further  personal  liability  for  such  debt 
and  if  an  action  has  been  brought  against  him  upon  such 
debt,  it  must  be  dismissed,  as  to  him,  upon  his  paying  the 
costs,  or  such  proportion  thereof  as  may  be  properly  charge- 
able against  him.  The  liability  of  each  stockholder  is  de- 
termined by  the  amount  of  stock  or  shares  owned  by  him  at 
the  time  the  debt  or  liability  was  incurred;  and  such  liabil- 
ity is  not  released  by  any  subsequent  transfer  of  stock.  The 
term  stockholder,  as  used  in  this  section,  applies  not  only  to 
such  persons  as  appear  by  the  books  of  the  corporation  to 
•be  such,  but  also  to  every  equitable  owner  of  stock,  although 
the  same  appears  on  the  books  in  the  name  of  another;  and 
also  to  every  person  who  has  advanced  the  installments  or 


§  323  SUPPLEMENT.  28 

purchase  money  of  stock  in  the  name  of  a  minor,  so  long  as 
the  latter  remains  a  minor;  and  also  to  every  guardian,  or 
other  trustee,  who  voluntarily  invests  anj^  trust  funds  in  the 
stock.  Trust  funds  in  the  hands  of  a  guardian,  or  trustee, 
are  not  liable  under  the  provisions  of  this  section,  by  reason 
of  any  such  investment;  nor  must  the  person  for  whose 
benefit  the  investment  is  made  be  responsible  in  respect  to 
the  stock  until  he  becomes  competent  and  able  to  control  the 
same;  but  the  responsibility  of  the  guardian  or  trustee  mak- 
ing the  investment  continues  until  that  period.  Stock  held 
as  collateral  security,  or  by  a  trustee,  or  in  any  other  repre- 
sentative capacity,  does  not  make  the  holder  thereof  a  stock- 
holder within  the  meaning  of  this  section,  except  in  the  cases 
above  mentioned,  so  as  to  charge  him  with  any  proportion 
of  the  debts  or  liabilities  of  the  corporation;  but  the  pledgor, 
or  person  or  estate  represented,  is  to  be  deemed  the  stock- 
holder, as  respects  such  liability.  In  a  corporation  having 
no  capital  stock,  each  member  is  individually  and  personally 
liable  for  an  equal  share  of  its  debts  and  liabilities,  and 
similar  actions  may  be  brought  against  him,  either  alone  or 
jointly  with  other  members,  to  enforce  such  liability  as  by 
this  section  may  be  brought  against  one  or  more  stockhold- 
ers, and  similar  judgments  may  be  rendered.  The  liability 
of  each  stockholder  of  a  corporation  formed  under  the  laws 
of  any  other  state  or  territory  of  the  United  States,  or  of 
any  foreign  country,  and  doing  business  within  this  state, 
is  the  same  as  the  liability  of  a  stockholder  of  a  corporation 
created  under  the  constitution  and  laws  of  this  state.  En. 
March  21,  1872.  Am'd.  1873-4,  203;  1875-6,  73;  1905,  396. 
Supp.  Cal.  Eep.  Cit.     140,  104;  140,  105;  141,  227;  142,  384. 

322.  The  change  consists  in  the  substitution  of  the  lansuage  of  the 
first  sentence  of  Section  3  of  Article  XII  of  the  Constitu- 
tion in  place  of  the  first  sentence  of  the  present  section. 
As  the  section  now  stands,  it  is  believed  to  be  uncon- 
stitutional. (See  Larrabee  v.  Baldwin,  35  Cal.  155.)  The 
words  "an  equal  share"  are  substituted  for  "his  propor- 
tion."— Code  Commissioner's  Note. 

§  323.  Certificates  of  stock,  how  issued.  All  corporations 
for  profit  must  issue  certificates  for  stock  when  fully  paid 
up,  signed  by  the  president  and  secretary,  and  may  provide, 
in  their  by-laws  for  issuing  certificates  prior  to  full  payment, 
under  such  restrictions  and  for  such  purposes  as  their  by-laws 
may   provide,   but   any   certificate   issued  prior   to   full   pay- 


29  CIVIL  CODE.  §§324-323 

ment  must   show  on  its  face  what  amount    has    been    paid 
thereon.     En.  March  21,  1872.     Am'd.  1905,  397. 

323.  The  change  consists  in  the  addition  of  the  words  "but  any 
certificate  issued  prior  to  full  paj-ment  must  show  on  its 
face  what  amount  has  been  paid  thereon,"  the  object  being 
to  require  a  certificate  issued  prior  to  full  payment  to  show 
the    amount   paid    thereon. — Code    Commissioner's    Note. 

§  324.     Supp.  Cal.  Eep.  Cit.     141,  16. 

§  325.  Married  woman  may  transfer  stock;  dividends 
paid  to  her;  proxy  of.  Shares  of  stock  in  corporations 
standing  on  the  books  of  the  corporation  in  the  name  of  a 
married  woman  may  be  transferred  by  her,  her  agent  or  at- 
torney, without  the  signature  of  her  husband,  and  in  the 
same  manner  as  if  such  married  woman  were  a  femme  sole. 
All  dividends  payable  upon  any  of  such  shares  of  stock  may 
be  paid  to  her,  her  agent  or  attorney,  in  the  same  manner 
as  if  she  were  unmarried;  and  any  proxy  or  power  given  by 
her,  touching  any  of  such  shares,  is  valid  and  binding,  and 
neither  it  nor  any  receipt  for  dividends  need  be  signed  by 
her  husband.     En.  March  21,  1872.     Am'd.  1905,  397. 

325.  The  amendment  is  desigrned  to  make  it  clear  that  shares  of 
stock  standing  in  the  name  of  a  married  woman  are  pre- 
sumed to  be  her  separate  property,  and  that  they  may  be 
dealt  with  by  her  as  such,  in  the  absence  of  proof  and  no- 
tice  to   the   contrary. — Code   Commissioner's  Note. 

§  328.  Shares  of  stock,  etc.,  duplicates  how  issued. 
Whenever  a  certificate  of  stock  or  of  shares  in  a  corporation 
organized  under  the  laws  of  this  state  has  been  lost,  de- 
stroyed or  wrongfully  withheld,  the  owner  thereof  may  bring 
an  action  against  such  corporation  in  the  superior  court  of 
the  county  in  which  is  located  its  principal  place  of  business, 
for  the  purpose  of  obtaining  a  new  or  duplicate  certificate. 
If  by  the  books  of  the  corporation  the  stock  stands  in  the 
name  of  a  person  other  than  the  plaintiff,  or  if  by  such  books 
it  appears  that  some  other  person  claims  or  has  some  right, 
title,  or  interest  in,  or  lien  upon,  such  stock,  all  such  persons 
must  be  made  parties  defendant  with  the  corporation.  Sum- 
mons must  be  issued  and  served  as  in  other  civil  actions, 
and  in  addition  thereto,  the  court  must  direct  its  clerk  to 
issue  and  cause  to  be  published,  at  least  once  a  week  for 
four  successive  weeks,  in  some  newspaper  published  in  the 
county,  a  notice  setting  forth  the   pendency  of  the   action, 


§§  331-360  SUPPLEMENT.  30 

the  names  of  the  parties  thereto,  the  court  in  which  it  is 
pending,  the  name  of  the  corporation  issuing  the  stock,  the 
number  of  the  certificate  and  the  number  of  the  shares,  the 
name  of  the  person  mentioned  as  stockholder  in  the  certifi- 
cate, and  notifying  all  persons  claiming  said  shares,  or  any 
of  them,  or  any  interest  or  lien  therein  or  thereupon,  to  be 
and  appear  before  the  court  at  a  time  and  place  to  be  desig- 
nated in  the  notice  not  less  than  thirty  days  from  the  first 
publication  thereof,  then  and  there  to  show  cause  why  a  new 
certificate  should  not  be  directed  to  be  issued  to  the  plain- 
tiff, and  to  set  forth  their  rights  in  or  claim  to  such  shares. 
If  any  one  appears  and  answers  or  intervenes  in  the  action, 
it  must  proceed  to  trial  as  in  other  civil  cases,  and  the  court 
must  enter  judgment  as  from  the  facts  established  may  be 
proper;  but  if  no  one  appears  within  the  time  designated  in 
such  notice,  nor  within  the  time  allowed  by  law  after  the 
services  of  such  summons,  the  court  must  hear  such  evidence 
as  may  be  offered  in  support  of  the  allegations  of  the  com- 
plaint, and  make  and  file  its  decision  thereon,  and  thereupon 
may  enter  its  jvidgment  canceling  the  lost,  destroyed  or 
wrongfully  withheld  certificate  and  directing  the  corpora- 
tion, upon  payment  to  it  of  all  costs  incurred  by  it  in  the 
premises  and  without  costs  against  the  corporation,  to  issue 
to  the  plaintiff  a  new  or  duplicate  certificate.  After  the  is- 
suing of  a  new  certificate  by  the  corporation  pursuant  to 
any  judgment  in  such  action,  no  action  can  ever  be  main- 
tained by  any  person  against  the  corporation  in  reference 
to  said  lost  or  destroyed  certificate  or  the  shares  represented 
thereby,  and  thereafter  any  such  action  is  forever  barred  as 
against  the  corporation.     En.  Stats.  1905,  500. 

§  331.     Supp.  Cal.  Kep.  Cit.     141,  227;  145,  700;  145,  701; 
145,  702, 

§  332.     Supp.    Cal.   Rep.    Cit.     145,    701;    145,    710.     Subd. 
1—145,  702;   145,  707;  145,  709. 

§  349.     Supp.  Cal.  Eep.  Cit.     145,  700;   145,  701. 

§  354.     Supp.  Cal.  Eep.  Cit.     Subd.  4—144,  594. 

§  360.     Real  estate,  amount  which  may  he  held  by.     Xo 

corporation  shall  acquire  or  hold  any  more  real  property  than 


31  CIVIL  CODE.  §§361,362 

may  he  reasonably  necessary  for  the  transaction  of  its  busi- 
ness, or  the  construction  of  its  works,  except  as  otherwise 
specially  provided.  A  corporation  may  acquire  real  prop- 
erty, as  provided  in  title  seven,  part  three,  of  the  Code  of 
Civil  Procedure,  when  needed  for  any  of  the  uses  and  pur- 
poses mentioned  in  said  title.  By  a  unanimous  vote  of  all 
the  directors  at  any  regular  meeting^  any  corporation  exist- 
ing, or  hereafter  to  be  formed  under  the  laws  of  this  state, 
may  acquire  and  hold  the  land  and  building  on  and  in  which 
its  business  is  carried  on,  and  may  improve  the  same  to  any 
extent  required  for  the  convenient  transaction  of  its  busi- 
ness. En.  March  21,  1872.  Am'd.  ISTS-l,  208;  1905,  774. 
Supp.  Cal.  Eep.  Cit.     144,  594. 

360.  Section  363,  approved  March  5,  1899,  is  added  to  section  360, 

to    the    end   that    there    shall   not,    as   now,    be    two   sections 
numbered   363.— Code   Commissioner's   Note. 

§  361.     En.  Stats.  1875-6,  75.     Eep.  1905,  775. 

361.  Repealed,   and  the  matter  therein  added  to  section  587a.— Code 

Commissioner's    Note. 

§  362.  Articles  of  incorporation,  how  amended.  Any  cor- 
poration may  amend  its  articles  of  incorporation  by  a  ma- 
jority vote  of  its  board  of  directors  or  trustees,  and  by  a 
vote  or  written  assent  of  the  stockholders  representing  at 
least  two.  thirds  of  the  subscribed  capital  stock  of  such  cor- 
poration, or  the  written  assent  of  the  majority  of  the  mem- 
bers, if  there  is  no  capital  stock;  and  a  copy  of  the  said 
articles  of  incorporation,  as  thus  amended,  duly  certified  to 
be  correct  by  the  president  and  secretary  of  the  board  of  di- 
rectors or  trustees  of  such  corporation,  shall  be  filed  in  the 
office  where  the  original  articles  of  incorporation  are  filed, 
and  a  certified  copy  thereof,  duly  certified  by  such  county 
clerk,  in  the  office  of  the  secretary  of  state.  A  copy  of  such 
articles  of  incorporation,  so  amended,  duly  certified  by  the 
secretary  of  state,  must  be  filed  in  the  office  of  the  county 
clerk  of  every  county  in  which  such  corporation  has  or  holds 
property,  except  only  the  county  in  which  the  original 
amended  articles  of  incorporation  have  been  filed.  Any  cor- 
poration which  shall  amend  its  articles  of  incorporation  and 
shall  fail  to  file  copies  of  its  amended  articles,  as  required 
by  the  preceding  sentence,  shall  be  subject  to  the  penalties 
and  liabilities  provided  in  section  two  hundred  and  ninety- 


§§  363-388  SUPPLEMENT.  32 

nine  for  a  failure  of  corporations  to  file  copies  of  their  arti- 
cles of  incorporation  in  the  offices  of  the  county  clerks  of  the 
counties  in  which  they  shall  purchase,  hold,  or  locate  prop- 
erty, and  from  the  time  of  so  filing  such  copy  of  the 
amended  articles  of  incorporation,  such  corporation  shall 
have  the  same  powers,  and  the  stockholders  thereof  shall 
thereafter  be  subject  to  the  same  liabilities,  as  if  such 
amendment  had  been  embraced  in  the  original  articles  of  in- 
corporation. Such  original  and  amended  articles  of  incor- 
poration shall  together  contain  all  the  matters  and  things 
required  by  the  laws  under  which  the  original  articles  of  in- 
corporation were  executed  and  filed.  Nothing  contained  in 
this  section  must  be  construed  to  cure  or  amend  any  defect 
existing  in  the  original  articles  of  incorporation  heretofore 
filed,  in  that  such  articles  did  not  set  forth  the  matters  re- 
quired to  make  the  same  valid  at  the  time  of  filing.  If  the 
assent  of  two  thirds  of  said  stockholders,  or  of  the  majority 
of  members  where  there  is  no  capital  stock,  to  such  amend- 
ment has  not  been  obtained,  a  notice  of  the  intention  to  make 
such  amendment  must  first  be  advertised  for  thirty  days  in 
some  newspaper  published  in  the  town,  city,  county,  or  city 
and  county  in  which  the  principal  place  of  business  of  the 
corporation  is  located,  before  the  filing  of  the  proposed 
amendment.  Nothing  in  this  section  shall  be  construed  to 
authorize  any  corporation  to  increase  or  diminish  its  capital 
stock,  change  its  name,  extend  its  corporate  existence,  or 
increase  or  diminish  the  number  of  its  directors,  without  com- 
plying with  the  special  provisions  of  this  code  applicable 
thereto.  En.  Stats.  1885,  91.  Am'd.  1893,  131;  1903,  411; 
1905,  775. 

§  363.     En.  1889,  67.     Eep.  1905,   776. 

363.  There  were  formerly  two  sections  of  this  number,  one  adopted 
March  19,  1889,  and  the  other  adopted  March -5,  1889.  The 
former  remains  in  force ;  the  latter  was  repealed,  1905, 
776.      See   Code   Commissioner's  note   under   §    360,   ante. 

§  384.     Supp.    Cal.    Eep.    Cit.     145,   480. 

§  388.  Franchises  sold  under  execution.  For  the  satisfac- 
tion of  any  judgment  against  any  person,  company,  or  cor- 
poration having  any  franchise  other  than  the  franchise  of 
being  a  corporation,  such  franchise,  and  all  the  rights  and 


83  CIVIL  CODE.  §§  391  399 

privileges  thereof,  may  be  levied  upon  and  sold  under  exe- 
cution, in  the  same  manner,  and  with  the  same  effect,  as  any 
other  property.  En.  March  21,  1S72.  Am'd.  1873-4,  208; 
1897,  16;   1905,  409. 

388.  This  section  as  it  now  stands  applies  only  to  corporations  au- 
thorized to  receive  tolls,  and  is  probably  unconstitutional  as 
creating  a  special  law  where  a  general  law  may  be  made 
applicable.  (See  Krause  v.  Durbrow,  19  Cal.  Dec.  93.)  The 
amendment  makes  the  section  applicable  to  all  corpora- 
tions.— Code    Commissioner's    Note. 

§  391.  Liabilities  same  as  before  sale.  The  person,  com- 
pany, or  corporation  whose  franchise  is  sold,  as  in  this 
article  provided,  in  all  other  respects  retains  the  same 
powers,  is  bound  to  the  discharge  of  the  same  duties,  and 
is  liable  to  the  same  penalties  and  forfeitures,  as  before 
such  sale.     En.  March  21,  1872.     Am'd.  1905,  409. 

391.  The    amendment   makes   the   section   applicable   to   persons   and 

companies  as  well  as  to  corporations.— Code  Commissioner's 
Note.  ■ 

§  392.  Redemption.  Eedemption  from  any  such  sale  may 
be  had  as  provided  in  the  Code  of  Civil  Procedure  in  the 
case  of  redemptions  from  sales  of  real  estate  on  execution. 
En.  March  21,  1872.     Am'd.   1905,  409. 

392.  The    amendment    makes    applicable    to    an    execution    sale    of 

franchises   the   law   of  redemption   applicable   to   other   sales 
of  real  property. — Code   Commissioner's   Note. 

§  393.  Sale  where  made.  The  sale  of  any  franchise  under 
execution  must  be  made  in  the  county  in  which  the  corpora- 
tion has  its  principal  place  of  business,  or  in  which  the 
property,  or  some  portion  thereof,  is  situated.  En.  March 
21,  1872.     Am'd.  1873-4,  209;  1905,  409. 

393.  Omits  the  words   "upon  which  the  taxes  are  paid,"    that   hav- 

ing  apparently   no   relevancy   to    the    section. — Code    Cijmmis- 
sioner's   Note. 

§  399.     En.  March   21,  1872.     Eep.  1905,  563. 

399.  This  section,  which  purports  merely  to  designate  the  place  in 
the  Code  of  Civil  Procedure  where  the  dissolution  of  cor- 
porations is  provided  for,  does  not  state  any  rule  of  law 
and  constitutes  but  an  imperfect  index  to  the  provisions  re- 
ferred  to. — Code   Commissioner's   Note. 


§§  400,  401  SUPPLEMENT.  84 

§  400.  Corporations,  directors  are  trustees  of  creditors, 
when  dissolved,  except.  Unless  other  persons  are  appointeil 
by  tlie  court,  the  directors  or  managers  of  the  affairs  of  a 
corporation  at  the  time  of  its  dissolution  are  trustees  of  the 
creditors  and  stockholders  or  members  of  the  corporation 
dissolved,  and  have  full  power  to  settle  the  affairs  of  the 
corporation.     En.  March  21,  1872.     Am'd.  1905,  563. 

400.  The  change  consists  in   the   substitution  of  the  word   "a"    for 

"such." — Code  Commissioner's  Note. 

§  401.  Extension  of  corporate  existence.  Every  corpora- 
tion formed  for  a  period  less  than  fifty  years,  may,  at  any 
time  prior  to  the  expiration  of  the  term  of  its  corporate 
existence,  extend  such  term  to  a  period  not  exceeding  fifty 
years  from  its  formation.  iSuch  extension  may  be  made  at 
any  meeting  of  the  stockholders  or  members  called  by  the 
directors  expressly  for  considering  the  subject  if  voted  by 
stockholders  representing  two  thirds  of  the  capital  stock;  or 
by  two  thirds  of  the  members;  or  may  be  made  npon  the 
written  assent  of  two  thirds  of  the  members  or  of  stock- 
holders representing  two  thirds  of  the  capital  stock.  A 
certificate  of  the  proceedings  of  the  meeting  upon  such  vote, 
or  upon  such  assent,  must  be  signed  by  the  chairman  and 
secretary  of  the  meeting  and  a  majority  of  the  directors, 
and  be  filed  in  the  office  of  the  county  clerk  where  the 
original  articles  of  incorporation  were  filed,  and  a  certified 
copy  thereof  in  the  office  of  the  secretary  of  state,  and 
thereupon  the  term  of  the  corporation  is  extended  for  the 
specified  period.  En.  March  21,  1872.  Am'd.  1873-4,  209; 
1905,  564. 

401.  The  desigri  of  the  amendment  is  to  require  the  written  assent 

of  stockholders  representing  two  thirds  of  the  capital  stock 
instead  of  permitting  two  thirds  in  number  of  the  stock- 
holders to  act  by  their  written  consent.  The  change  con- 
sists in  the  substitution  of  the  words  "two  thirds  of  the 
members  or  of  stockholders  representing  two  thirds  of  the 
capital  stock"  in  place  of  that  number  of  stockholders  or 
members.— Code   Commissioner's  Note. 


as  CIVIL  CODE.  §§403,404 


DIVISIOIT  FIRST. 
PART  IV. 

TITLE   I. 

CHAPTER  V. 
New  chapter  added  March  20,  1905.     Stats.  1905,  410. 

GENERAL   PROVISIONS   AFFECTING   CORPORATIONS. 

§  403.  Title  one  to  apply  to  all  corporations,  with  certain 
exceptions. 

§  404.  Power  of  the  legislature  to  amend  or  repeal  this 
part,  or  any  title,  chapter,  article,  or  section  there- 
of, and  to  dissolve  all  corporations  created  there- 
under. 

§  403.  Title  one  to  apply  to  all  corporations,  with  certain 
exceptions.  The  provisions  of  this  title  are  applicable  to 
every  corporation,  unless  such  corporation  is  excepted  from 
its  operation,  or  unless  a  special  provision  is  made  in  rela- 
tion thereto  inconsistent  with  some  provision  in  this  title, 
in  which  case  the  special  provision  prevails.  En.  March  21, 
1872.     Eep.  1905,  410.     En.  Stats.  1905,  410. 

403,  404.  The  bill  adds  a  new  chapter  entitled  "General  Provisions 
Affecting  Corporations."  Said  chapter  is  made  up  of  the 
old  section  403,  which  now  stands  in  a  chapter  entitled 
"Extension  and  Dissolution  of  Corporations,"  and  of  the 
matter  now  in  section  384,  which  now  stands  in  a  chapter 
entitled  "Examination  of  Corporations."  The  object  of  the 
rearrangement  is  the  placing  of  the  sections  under  a  more 
appropriate   chapter   heading.— Code    Commissioner's   Note. 

§  404.  Power  of  legislature  to  amend  or  repeal  this  part, 
or  any  title,  chapter,  article,  or  section  thereof,  and  to  dis- 
solve all  corporations  created  thereunder.  The  legislature 
may  at  any  time  amend  or  repeal  this  part,  or  any  title, 
chapter,  article,  or  section  thereof,  and  dissolve  all  corpora- 


§  405  SUPPLEMENT.  86 

tions  created  thereunder;  but  such  amendment  or  repeal  does 
not,  nor  does  the  dissolution  of  any  such  corporation,  tako 
away  or  impair  any  remedy  given  against  any  such  corpora- 
tion, its  stockholders  or  officers,  for  any  liability  which  has 
been  previously  incurred.  En.  Stats.  1905,  410. 
See  note  to  §  403,  ante. 


PART  IV. 

TITLE  I. 

CHAPTER  VI. 
Chapter  added  March  21,  1905.     Stats.  1905.  G30. 

FOREIGN    CORPORATIONS. 

§  405.  Designation  of  person  on  whom  process  may  be 
served.  Service  on  the  secretary  of  state,  when 
valid. 

I  406.  Foreign  corporations,  statute  of  limitations  in 
favor  of.  Proof  of  corporate  existence.  Change 
of   designation. 

§  407.  Foreign  railway  corporations,  rights  of  in  this 
state. 

§  408.  Foreign  corporations  to  file  certified  copies  of  ar- 
ticles of  incorporation. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing 
certified  copies  of  articles  of  incorporation. 

§  410.  Foreign  corporations,  penalty  for  failure  to  file 
certified  copies  of  articles  of  incorporation. 

§  405.  Designation  of  person  on  whom  process  may  be 
served.  Service  on  the  secretary  of  state,  when  valid. 
Every  corporation  other  than  those  created  by  or  under  the 
laws  of  this  state  must,  within  forty  days  from  the  time  it 
commences  to  do  business  therein,  file  in  the  office  of  the 
secretary  of  state  a  designation  of  some  person  residing  with- 
in the  state  vipon  whom   process  issued  by  authority  of  or 


37  CIVIL  CODE.  §  403 

under  any  law  of  this  state  may  be  served.  A  copy  of  such 
designation,  duly  certified  by  the  secretary  of  state,  is  suffi- 
cient evidence  of  such  appointment.  Such  process  may  be 
served  on  the  person  so  designated,  or,  in  the  event  that 
no  such  person  is  designated,  then  on  the  secretary  of  state, 
and  the  service  is  a  valid  service  on  such  corporation.  En. 
Stats.  1905,  630. 

405,    406,   407.      These   sections  codify  the   statute  of   1889,   page   111, 
and  section  1,   statute  of  1880,   page  21. — Code  Commission- 
er's Note. 
The    act   intended   to   be   referred   to   here   by   the    Commissioner   is 
probably    that    of    1871-2,    p.    826,    as    amended    1899,    p.    111.— Ed. 


§  406.  Foreign  corporations,  statute  of  limitations  in 
favor  of.  Proof  of  corporate  existence.  Change  of  designa- 
tion. Every  corporation  which  complies  with  the  provisions 
of  this  chapter  is  thereafter  entitled  to  the  benefit  of  the 
laws  of  this  state  limiting  the  time  for  the  commencement 
of  civil  actions,  but  no  corporation  not  created  by  or  under 
the  laws  of  this  state  is  entitled  to  the  benefit  thereof,  nor 
can  any  such  corporation  maintain  or  defend  any  action  or 
proceeding  in  any  court  of  this  state  until  the  corporation 
has  complied  with  the  provisions  of  the  preceding  section. 
In  any  action  or  proceeding  instituted  against  any  body 
styled  as  a  corporation,  but  not  created  by  nor  under  the 
laws  of  this  state,  evidence  that  such  body  has  acted  as  a 
corporation,  or  employed  methods  usually  employed  by  cor- 
porations, must  be  received  by  the  court  for  the  purpose  of 
proving  the  existence  of  such  corporation,  the  sufficiency  of 
such  evidence  to  be  determined  by  the  court  with  like  effect 
as  in  other  cases.  Every  corporation  which  has  complied 
with  the  laws  then  in  force,  requiring  it  to  make  and  file  a 
designation  of  the  person  upon  whom  process  against  it  may 
be  served,  need  not  make  or  file  any  further  designation. 
Any  designation  heretofore  or  hereafter  made  may  be  re- 
voked by  the  filing  by  the  corporation  with  the  secretary  of 
state  of  a  writing  stating  such  revocation.  Within  forty 
days  after  the  death  or  removal  from  the  state  of  any  per- 
son designated  by  the  corporation,  or  after  the  revocation 
of  the  designation,  the  corporation  must  make  a  new  desig- 
nation, or  be  subject  to  the  provisions  and  penalties  of  this 
chapter.     En.  Stats.  190.5,  630. 

See  note  to  §  405,  ante. 
Civil  Code— 4 


|§  407-409  SUPPLEMENT.  38 

§  407,  Foreign  railway  corporations,  rights  of  in  this 
state.  Every  railway  or  other  corporation  organized  for  the 
purpose  of  carrying  freight  or  passengers  under  or  by  virtue 
of  the  laws  of  the  United  States,  or  of  any  state  or  terri- 
tory thereof,  may  build  railroads,  exercise  the  right  of  emi- 
nent domain,  and  transact  any  other  business  which  it  might 
do  if  it  were  created  and  organized  under  or  by  virtue  of 
the  laws  of  this  state,  and  has  the  same  rights,  privileges, 
and  immunities,  and  is  subject  to  the  same  laws,  penalties, 
obligations,  and  burdens  as  if  created  or  organized  under 
and  by  virtue  of  the  laws  of  this  state.  Nothing  contained 
in  this  section  shall  be  construed  to  exempt  any  corporation 
from  any  duty  or  liability  imposed  upon  it  by  any  of  the 
provisions  of  this  character.     En.  Stats,  1905,  631. 

See  note  to  §  405,  ante. 

§  408.  Foreign  corporations  to  file  certified  copies  of  ar- 
ticles of  incorporation.  Every  corporation  organized  under 
the  laws  of  another  state,  territory,  or  of  a  foreign  country, 
which  is  now  doing  business  in  this  state,'  or  is  maintaining 
an  office  herein,  or  which  shall  hereafter  do  business  in  this 
state  or  maintain  an  office  herein,  or  which  shall  enter  this 
state  for  the  purpose  of  doing  business  herein,  must  file  in 
the  office  of  the  secretary  of  state  of  the  State  of  California 
a  certified  copy  of  its  articles  of  incorporation,  or  of  its 
charter,  or  of  the  statute  or  statutes,  or  legislative,  or  execu- 
tive, or  governmental  act  or  acts  creating  it,  in  eases  where 
it  has  been  created  by  charter,  or  statute,  or  legislative,  or 
executive,  or  governmental  act,  and  a  certified  copy  thereof, 
duly  certified  by  the  secretary  of  state  of  this  state,  in  the 
office  of  the  county  clerk  of  the  county  where  its  principal 
place  of  business  is  located,  and  also  where  such  corporation 
owns  property.     En.  Stats.  1905,  631. 

408,  409,  410.      These  sections  codify  the  statute  of  1901,  page  108.— 
Code  Commissioner's  Note. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing 
certified  copies  of  articles  of  incorporation.  For  filing  and  is- 
suing a  certified  copy  as  required  in  section  four  hundred 
and  eight  of  this  code,  corporations  formed  under  the  laws 
of  another  state,  or  of  a  territory,  or  of  a  foreign  country, 
must  pay  the  same  fees  as  are  paid  by  corporations  formed 
under  the  laws  of  this  state.     En.  Stats.  1905,  631. 

See  note  to  §  408,  ante. 


39  CIVIL  CODE.  §§  410  415 

§  410.  Foreign  corporations,  penalty  for  failure  to  file 
certified  copies  of  articles  of  incorporation.  Every  corpora- 
tion organized  under  the  laws  of  another  state,  territory,  or 
of  a  foreign  country,  which  shall  neglect  or  fail,  within 
ninety  days  from  the  taking  effect  of  this  section,  to  com- 
ply with  the  conditions  of  sections  four  hundred  and  eight 
and  four  hundred  and  nine  of  this  code,  shall  be  subject  to 
a  fine  of  not  less  than  five  hundred  dollars,  to  be  recovered 
in  any  court  of  competent  jurisdiction;  and  it  is  hereby 
made  the  duty  of  the  secretary  of  state,  as  he  may  be  ad- 
vised that  corporations  are  doing  business  in  contravention 
of  sections  four  hundred  and  eight  and  four  hundred  and 
nine  of  this  code,  to  report  the  fact  to  the  governor,  who 
shall  instruct  the  district  attorney  of  the  county  wherein 
such  corporation  has  its  principal  place  of  business,  or  the 
attorney-general  of  the  state,  or  both,  as  soon  as  practicable, 
to  institute  proceedings  to  recover  the  fine  provided  for  in 
this  section,  and  the  amount  so  recovered  must  be  paid  into 
the  state  treasury  to  the  credit  of  the  general  fund  of  the 
state;  in  addition  to  which  penalty,  no  foreign  corporation 
which  shall  fail  to  comply  with  sections  four  hundred  and 
eight  and  four  hundred  and  nine  of  this  code  can  maintain 
any  suit  or  action  in  any  of  the  courts  of  this  state  until  it 
has  complied  with  said  sections;  provided,  that  any  such  cor- 
poration which,  prior  to  the  8th  day  of  March,  1901,  shall 
have  complied  with  the  provisions  of  the  act  entitled  "An 
act  to  amend  'An  act  in  relation  to  foreign  corporations,' 
approved  April  1,  1372."  approved  March  17,  1899,  is  ex- 
empted from  the  provisions  of  this  section  and  the  two  sec- 
tions next  preceding.     En.   Stats.   1905,  631. 

See  note  to  §  408,  ante. 

§  415.  Purchase  and  conveyance  of  real  estate.  No  in- 
surance corporation  may  purchase,  hold  or  convey  real  estate, 
except  as  hereinafter  set  forth,  to  wit: 

1.  The  building  in  which  it  has  its  principal  office  and  the 
land  upon  which  it  stands. 

2.  Also,  such  as  may  be  requisite  for  its  accommodation  in 
the  convenient  transaction  of  its  business. 

3.  Also,  such  as  may  be  conveyed  to  it,  or  to  any  person 
for  it,  by  way  of  mortgage,  or  in  trust  or  otherwise,  to  se- 
cure or  provide  for  the  payment  of  loans  previously  con- 
tracted or  for  moneys  due. 


§  421  SUPPLEMENT.  40 

4.  Also  such  as  may  he  purchased  at  sales  upon  floods  of 
trust,  or  judgments  obtained  or  made  for  such  loans  or  debts. 

5.  Also  suL'h  as  may  be  conveyed  to  it  in  satisfaction  of 
debts  previously  contracted  in  the  course  of  its  dealings. 

All  such  real  estate,  mentioned  in  subdivisions  three,  four 
and  five,  so  acquired,  which  is  not  requisite  for  the  accom- 
modation of  such  corporation  in  the  transaction  of  its  busi- 
ness, must  be  sold  and  disposed  of  within  five  years  after 
such  corporation  acauired  title  to  the  same.  En.  March  21, 
1872.     Am'd.  1905,  21, 

§  421.     Insurance    corporations;     investment    of    capital. 

Corporations  organized  subsequent  to  April  first,  eighteen  hun- 
dred and  seventy-eight,  under  the  laws  of  this  state  for  the 
transaction  of  business  in  any  kind  of  insurance,  may  invest 
their  capital  and  accumulations  in  the  following  named  se- 
curities: 

1.  In  the  purchase  of,  or  loans  upon  interest-bearing  bonds 
of  the  United  States  government. 

2.  In  the  purchase  of,  or  loans  upon  interest-bearing  bonds 
of  any  of  the  states  of  the  United  States,  not  in  default  for 
interest  on  such  bonds. 

3.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  any  of  the  counties  and  incorporated  cities  and 
towns  of  any  state  or  territory  of  the  United  States  not  in 
default  for  interest  on  such  bonds. 

4.  In  loans  upon  unincumbered  real  property,  which  shall 
be  worth,  at  the  time  of  the  investment,  at  least,  forty  per 
cent  more  than  the  sum  loaned,  or  upon  merchandise  or 
cereals  in  warehouse,  but  in  no  instance  shall  such  loan  be 
made  in  excess  of  seventy-five  per  cent  of  the  security  taken. 

5.  Corporations  engaged  in  the  business  of  insuring  titles 
to  real  estate  may,  after  the  investment  of  one  hundred 
thousand  dollars  in  the  manner  provided  for  in  subdivisions 
one,  two,  three  and  four  of  this  section,  invest  an  amount  not 
exceeding  fifty  per  cent  of  their  subscribed  capital  stock,  in 
the  preparation  or  purchase  of  the  materials  or  plant  neces- 
sary to  enable  them  to  engage  in  such  business;  and  such 
material  or  plant  shall  be  deemed  an  asset  valued  at  the  ac- 
tual cost  thereof,  in  all  statements  and  proceedings  required 
by  law  for  the  ascertainment  and  determination  of  the  con- 
dition of  such  corporations. 

6.  Corporations  organized  for  and  engaged  in  the  business 
of   fire,    life,    health,    accident    and    marine    insurance,    may, 


41  CIVIL  CODE.  §  421 

after  the  investment  of  two  hundred  thousand  dollars,  and 
corporations  formed  or  organized  for  the  transaction  of 
business  in  any  kind  of  insurance  not  enumerated  in  section 
four  hundred  and  nineteen  of  the  Civil  Code  may,  after  the 
investment  of  one  hundred  thousand  dollars,  in  the  man- 
ner provided  in  subdivisions  one,  two,  three  and  four  of  this 
section,  invest  the  balance  of  their  capital  and  any  accu- 
mulations in  interest-bearing  first  mortgage  bonds  of  any 
corporations  (except  mining  companies),  not  in  default  of 
interest,  organized  and  carrying  on  business  under  the  laws 
of  anj^  state  of  the  United  States.  Provided,  that  a  two- 
thirds  vote  of  all  the  directors  of  such  corporations  shall 
approve  such  investment.  It  shall  be  the  duty  of  the  officer3 
of  such  corporation  to  report  quarterly,  on  the  first  days 
of  January,  April,  July  and  October  of  each  year  to  the  in- 
surance commissioner  a  list  of  such  investments  so  made  by 
them,  and  the  insurance  commissioner  may,  if  such  invest- 
ments, or  any  of  them,  seem  injudicious  to  him,  require  the 
sale  of  the  same.  But  no  investment  in  the  securities  named 
in  subdivisions  one,  two,  three  and  six  of  this  section  must 
be  made  in  an  amount  exceeding  the  market  value  of  such 
securities,  at  the  date  of  such  investment. 

7.  Life  insurance  companies,  or  corporations,  no  matter 
when  organized,  may  loan  upon  their  own  policies,  provided 
that  the  amount  so  loaned  upon  each  policy  shall  not  ex- 
ceed the  reserve  against  said  policy  at  the  time  said  loan  is 
made;  provided  further,  that  no  policy  loans  whatever  shall 
ever  be  used  as  security  which  may  be  deposited  with  the  in- 
surance commissioner  under  section  six  hundred  and  thirty- 
four  of  the  Political  Code;  and  provided  further,  that  when- 
ever any  such  loan  in  any  amount  is  made  on  a  policy  regis- 
tered with  the  insurance  commissioner  under  said  section  six 
hundred  and  thirty-four  of  the  Political  Code,  such  registra- 
tion shall  be  forthwith  canceled. 

Nothing  in  this  section  contained  shall  be  construed  as  in 
anywise  affecting  the  provisions  of  section  four  hundred  and 
forty-four  of  this  code.     En.  Stats.  1905,  34. 

This  section  was  adopted  March  3,  1905. 

There  was  also  another  §  421  adopted  March  21,  1905,  as  follows: 

§  421.  Corporations,  insurance,  in  general;  how  capital 
and  accumulations  may  be  invested  by.  Corporations  organ- 
ized  under    the    lavv^s    of   this    state    for   the    transaction    of 


§  421  SUPPLEMENT.  42 

business  in  any  kind  of  insurance,  may  invest  their  capital 
and  accumulations  in  the  following  named  securities. 

1.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  the  United  States  government. 

2.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  any  of  the  states  of  the  United  States,  not  in  de- 
fault for  interest  on  such  bonds. 

3.  In  the  purchase  of,  or  loans  upon  interest-bearing 
bonds  of  any  of  the  counties  and  incorporated  cities  and 
towns  of  any  state  or  territory  of  the  United  States  not  in 
default  for  interest  on  such  bonds. 

4.  In  loans  upon  unincumbered  real  property,  which  shall 
be  worth,  at  the  time  of  the  investment,  at  least,  forty  per 
cent  more  than  the  sum  loaned,  or  upon  merchandise  or 
cereals  in  warehouse,  but  in  no  instance  shall  such  loan  be 
made  in  excess  of  seventy-five  per  cent  of  the  security 
taken. 

5.  Corporations  engaged  in  the  business  of  insuring  titles 
to  real  estate  may,  after  the  investment  of  one  hundred 
thousand  dollars  in  the  manner  provided  for  in  subdivisions 
one,  two,  three  and  four  of  this  section,  invest  an  amount 
not  exceeding  fifty  per  cent  of  their  subscribed  capital 
stock,  in  the  preparation  or  purchase  of  the  materials  or 
plant  necessary  to  enable  them  to  engage  in  such  business; 
and  such  material  or  plant  shall  be  deemed  an  asset  valued 
at  the  actual  cost  thereof,  in  all  statements  and  proceed- 
ings required  by  law  for  the  ascertainment  and  determina- 
tion of  the  condition  of  such  corporations. 

6.  Corporations  organized  for  and  engaged  in  the  busi- 
ness of  fire,  life,  health,  accident  and  marine  insurance,  may, 
after  the  investment  of  two  hundred  thousand  dollars,  and 
corporations  formed  or  organized  for  the  transaction  of 
business  in  any  kind  of  insurance  not  enumerated  in  sec- 
tion four  hundred  and  nineteen  of  the  Civil  Code  may,  after 
the  investment  of  one  hundred  thousand  dollars,  in  the 
manner  provided  in  subdivision  one,  two,  three  and  four  of 
this  section,  invest  the  balance  of  their  capital  and  any  ac- 
cumulations in  the  purchase  of  or  loans  upon  the  stock  of 
any  corporation  (except  mining  companies)  organized  and 
carrying  on  business  under  the  laws  of  the  State  of  Cali- 
fornia which  have  at  the  time  of  investment  a  market 
value  of  not  less  than  their  paid-in  value,  and  which  are 
rated  as  first-class  securities,  or  in  interest-bearing  first 
mortgage  bonds  of  same  not  in  default  of  interest;  provided, 


43  CIVIL  CODE.  §§  427-431 

that  a  two-thirds  vote  of  all  the  directors  of  such  corpora- 
tions shall  approve  such  investment.  It  shall  be  the  duty 
of  the  officers  of  such  corporation  to  report  quarterly  dur- 
ing the  months  of  January,  April,  July  and  October  of  each 
year  to  the  insurance  commissioner  a  list  of  such  invest- 
ments so  made  by  them,  and  the  insurance  commissioner 
may,  if  such  investments,  or  any  of  them,  seem  injudiciovis 
to  him,  require  the  sale  of  the  same.  But  no  investment  in 
the  securities  named  in  subdivisions  one,  two,  three  and 
six  of  this  section  must  be  made  in  an  amount  exceeding 
the  market  value  of  such  securities,  at  the  date  of  such  in- 
vestment. 

7.  Life  insurance  corporations  may  loan  upon  their  own 
policies  provided  that  the  amount  so  loaned  upon  each  pol- 
icy shall  not  exceed  the  reserve  against  said  policy  at  the 
time  said  loan  is  made;  provided  further,  that  no  policy  loans 
whatever  shall  ever  be  used  as  security  which  may  be  de- 
posited with  the  insurance  commissioner  under  section  six 
hundred  and  thirty-four  of  the  Political  Code;  and  provided 
further,  that  whenever  any  such  loan  in  any  amount  is  made 

"on  a  policy  registered  with  the  insurance  commissioner  un- 
der said  section  six  hundred  and  thirty-four  of  the  Political 
Code,  such  registration  shall  be  forthwith   canceled. 

8.  Nothing  in  this  section  contained  shall  be  construed 
as  in  anywise  affecting  the  provisions  of  section  four  hun- 
dred and  forty-four  of  this  code.     En.  1905,  628. 

§  427.     En.   March   21,   1872.     Am'd.    1873-4,   210,    1877-8, 
81;  1887,  22;  1899,  66.     Kep.  1905,  34;  1905,  628. 

§  428.  Corporations,  fire  and  marine;  amount  of  risk  to 
be  taken  by.  Fire  and  marine  insurance  corporations  must 
never  take,  on  any  one  risk,  whether  it  is  a  marine  insurance 
or  an  insurance  against  fire,  a  sum  exceeding  one  tenth 
part  of  their  capital  actually  paid  in,  and  intact  at  the  time 
of  taking  such  risk,  without  at  once  reinsuring  the  excess 
above  one  tenth.  En.  March  21,  1872.  Am'd.  1873-4,  210; 
1905,  570. 

423.      The  change  consists  in  the  insertion  of  the  words    "at  once" 
before    "reinsuring." — Code    Commissioner's   Kote. 

§  431.     En.   Stats.   1877-8,  81.     Kep.   1905,  571. 


§§  437-452  SUPPLEMENT.  44 

431,  452.  Seotion  431,  which  deals  with  the  amounts  to  he  received 
by  life  insurance  companies,  now  stands  in  a  chapter  en- 
titled "Fire,  Marine,  and  Title  Insurance  Corporations." 
It  is  transferred  to  a  more  appropriate  chapter,  and  num- 
bered 452. — Code  Commissioner's  Note. 

§  437.  Mutual  life  insurance  companies;  capital  stock 
of;  capital  stock  to  be  paid  up;  guarantee  fund.  Every  cor- 
poration formed  for  the  purpose  of  mutual  insurance  on  the 
lives  or  health  of  persons,  or  against  accidents  to  persons 
for  life  or  any  fixed  period  of  time,  or  to  purchase  and  sell 
annuities,  must  have  a  capital  stock  of  not  less  than  two 
hundred  thousand  dollars.  It  must  not  make  any  insur- 
ance upon  any  risk  or  transact  any  other  business  as  a  cor- 
poration until  its  capital  stock  is  fully  paid  up  in  cash, 
nor  until  it  has  also  obtained  a  fund,  to  be  known  as  a 
"guarantee  fund,"  of  not  less  than  two  hundred  and  fifty 
thousand  dollars,  as  is  hereinafter  provided.  If  more  than 
the  requisite  amount  is  subscribed,  the  stock  must  be  dis- 
tributed pro  rata  among  the  subscribers.  Any  subscription 
may  be  rejected  by  the  board  of  directors  or  the  committee 
thereof,  either  as  to  the  whole  or  any  part  thereof,  and 
must  be,  so  far  as  rejected,  without  effect,  nothing  in  this 
section  shall  be  deemed  to  contravene  any  of  the  provisions 
of  section  four  hundred  and  fifty-one.  En.  March  21,  1872. 
Am'd.  1905,  183. 

§  448.     En.   March   12,   1872.     Eep.   1905,   571. 

448.  This  section  exempts  accident  insurance  companies  from  stamp 
duties,  but  as  there  are  no  such  duties  under  the  law  as  it 
now  stands  the  section  is  unnecessary. — Code  Commission- 
er's Note. 

§  450.     Supp.    Cal.    Eep.    Cit.     139,    335. 

§  452.  Corporations,  life  insurance,  dividends,  how  made. 
No  corporation  formed  under  the  laws  of  this  state,  and 
transacting  life  insurance  business,  must  make  any  divi- 
dends, except  from  profits  remaining  on  hand  after  retain- 
ing unimpaired: 

1.  The   entire  capital  stock; 

2.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes; 

3.  A  sum  sufficient  to  reinsure  all  outstanding  policies, 
as  ascertained  and  determined  upon  the  basis  of  the  Ameri- 


45  CIVIL  CODE.  §  452a 

can  experience  table  of  mortality,  and  interest  at  the  rate 
of  four  and  one  half  per  cent  per  annum.     En.  Stats.  1877-8, 
83.     Eep.  1880,  92.     En.   1905,  571. 
See  note  to  §  431,  ante. 


PART  IV. 

TITLE  II. 

CHAPTEE   IV. 
•   New  chapter  added  March  20,  1905.     Stats.  1905,  411 

MUTUAL  BENEFIT  AND  LIFE  ASSOCIATIONS. 

§  452a.     Formation   of  the  association. 

§  453.       Levying  of  assessments.     By-laws  which  may  be 
made. 

§  452(7.  Formation  of  the  association.  Associations  of 
not  exceeding  one  thousand  persons  may  be  formed  for  the 
purpose  of  paying  to  the  nominee  of  any  member  a  sum, 
upon  the  death  of  the  member,  not  exceeding  three  dollars 
for  each  member  of  the  association.  Such  association  may 
be  formed  by  filing  articles  of  incorporation  in  the  office 
of  the  clerk  of  the  county  in  which  the  principal  place  of 
business  is  situated  and  a  certified  copy  of  such  articles  of 
incorporation,  duly  certified  by  the  county  clerk,  in  the 
office  of  the  secretary  of  state.  Such  articles  must  state 
the  name  of  the  corporation,  its  general  purposes,  its  prin- 
cipal place  of  business,  its  term  of  existence,  not  exceeding 
fifty  years,  the  names  and  residences  of  the  directors  se- 
lected or  appointed  to  serve  for  the  first  year,  and  must  bo 
signed  and  verified  as  required  by  sections  two  hundred  and 
ninety-two  and  fiv«  hundred  and  ninety-four.  En.  Stats. 
1905,  411. 

452a,  453.  Tlie  statute  of  1873-4,  page  745,  as  amended  by  the 
statutes  of  1830,  page  25,  and  1901,  page  6,  relating  to 
mutual  benefit  associations,  is  codified  in  the  above  sec- 
tions, and  a  new  chapter,  entitled  ''Mutual  Benefit  and  Life 
Associations,"  is  added,  to  consist  of  Lections  452a  and 
453. — Code    Commissioner's    Note. 


§§  453,  453a  SUrPLEMENT.  46 

§  453,  Levying  of  assessments.  By-laws  which  may  "be 
made.  Each  association  provided  for  in  this  chapter  may, 
on  the  death  of  a  member,  levy  an  assessment  on  the  sur- 
viving members  of  not  exceeding  three  dollars  for  each 
member,  and  collect  and  pay  the  same  to  the  nominee  of 
such  decedent,  and  may  also  provide  for  the  payment  of 
such  annual  payments  by  members  as  may  be  deemed  just, 
but  no  member  must  be  subject  to  any  annual  assessment 
in  excess  of  that  established  when  he  joined  the  associa- 
tion. The  association  may  make  such  by-laws  not  incon- 
sistent with  the  laws  of  the  state  as  may  be  necessary  for 
its  government  and  the  transaction  of  its  business;  may, 
by  its  name,  sue  and  be  sued;  loan  such  funds  as  it  may 
have  on  hand;  and  own  sufficient  real  estate  for  its  business 
purposes  and  such  as  it  may  be  necessary  to  purchase  on 
foreclosure  of  its  mortgages.     En.  Stats.  1905,  411. 

See  note  to  §  452a,  ante. 


PAET  IV. 

TITLE  II. 

CHAPTEE  V. 

New  chapter  added  March  21,  1905.     Stats.  1905,   571. 

CORPOEATIOXS    TO    DISCOVER    PIRE    AND    SAVE    PROPERTY 
AND   HUMAN   LIFE   EEOM   DESTRUCTION   THEREBY. 

§  453a.     Powers  of  the   corporation. 

§  4536.  Eight  of  way  of  corporation  and  its  officers  when 
running  to   fires. 

§  453c.  Yearly  meeting  of  corporation,  notice  to  be  given 
thereof,  and  proceedings  which  may  be  author- 
ized   thereat. 

§  453a.  Powers  of  the  corporation.  Any  corporation  of 
underwriters  heretofore  organized  and  now  existing,  or 
which   may  be   hereafter   organized   under   the   laws  of   this 


47  CIVIL  CODE.  §  453b 

state,  for  the  purpose  of  discovering  and  preventing  fires 
and  of  saving  property  and  human  life  from  conflagration, 
and  doing  business  within  any  municipal  corporation  of  this 
state,  has  power,  at  its  own  proper  cost  and  expense,  to 
maintain  a  corps  of  men,  with  proper  oflicers,  equipped 
with  the  necessary  machinery  and  apparatus  therefor, 
whose  duty  it  is,  so  far  as  practicable,  to  discover  and  pre- 
vent fires  and  save  property  and  human  life  from  conflagra- 
tion; and  for  the  effective  discharge  of  such  duties,  author- 
ity is  hereby  granted  such  corps  to  enter  any  building  ou 
fire,  or  in  which  property  is  on  fire,  or  which  such  corps  or 
any  officer  thereof  deems  to  be  immediately  exposed  to  any 
existing  fire,  or  in  danger  of  taking  fire  from  a  burning 
building,  and  to  remove  or  otherwise  save  and  protect  from 
conflagration  or  damage  by  water  any  property,  during  and 
immediately  after  such  fire.  Nothing  in  this  chapter  must 
be  so  construed  as  in  any  degree  to  lessen,  impair,  or  inter- 
fere with  the  powers,  privileges,  duties,  or  authority  of 
the  regular  fire  department  of  such  municipality;  nor  can 
any  act  of  such  corps  justify  any  owner  of  any  building 
or  property  in  abandoning  such  building  or  property.  En. 
Stats.  1905,  571. 

453a,  453b,  453c.  The  statute  of  1875-6,  page  689,  concerning  the 
powers  of  vmderwriters,  as  amended  by  the  statute  of  1897, 
page  223,  is  codified  in  the  sections  above  named,  a  new 
chapter  being  added,  entitled  "Corporations  to  Discover 
Fire,  and  to  Save  Property  and  Human  Life  From  Destruc- 
tion Thereby,"  to  consist  of  sections  453a,  453b,  and  453c. 
Code  Commissioner's  Note. 

§  453?).  Right  of  way  of  corporation  and  its  oflRcers  when 
running  to  fires.  Such  corporation,  with  its  officers  and 
corps,  when  running  to  a  fire  with  its  horses,  vehicles,  and 
salvage  apparatus,  has  the  same  right  of  way  as  is  or  may 
be  bestowed  by  any  ordinance  of  the  municipality  or  law 
of  this  state  upon  the  regular  fire  department  of  the 
municipality  wherein  such  corporation  is  acting;  but  the 
rights  of  such  fire  department  must  always  be  paramount 
to  the  rights  of  such  corporation.  All  ordinances  now  ex- 
isting or  which  may  hereafter  be  passed  by  the  municipal 
authorities  of  any  city  and  county,  or  of  any  incorporated 
city  or  town  wherein  such  a  corporation  may  carry  on  busi- 
ness, and  all  laws  of  this  state  applicable  to  such  city  and 
county,  or  city  or  town,  for  the  conviction  or  punishment 
of  any  person  or  persons  willfully  or  carelessly  obstructing 


§  4530  SUPPLEMENT.  48 

the  progress  of  the  apparatus  of  the  fire  clepartment  of 
such  city  and  county,  or  city  or  town,  while  going  to  a 
fire,  or  of  any  person  or  persons  willfully  or  carelessly  in- 
juring any  animal  or  property  of  said  fire  department,  are 
equally  applicable  to  any  person  or  persons  willfully  or 
carelessly  obstructing  the  progress  of  the  apparatus  of 
such  corporation  while  going  to  a  fire,  and  to  any  person 
or  persons  who  willfully  or  carelessly  injures  any  animal 
or  property  of  such  corporation;  and  said  laws  and  or- 
dinances, and  their  penalties,  may  be  enforced  in  the  same 
courts  and  in  the  same  manner,  and  with  equal  force  and 
effect,  as  in  the  case  of  the  fire  department.  En.  Stats. 
1905,  572. 
See  note  to  §  453a,  ante. 

§  453c.  Yearly  meeting  of  corporation,  notice  to  be  given 
thereof,  and  proceedings  which  may  be  authorized  thereat. 
In  the  month  of  July,  in  every  year,  there  must  be  held  a 
meeting  of  all  corporations  created  for  the  purposes  specified 
in  this  chapter;  of  which  ten  days'  previous  notice  must 
be  inserted  in  at  least  one  daily  newspaper  published  in 
the  municipality  where  said  corporation  is  organized  or  es- 
tablished, at  which  meeting  each  insurance  company,  cor- 
poration, association,  underwriter,  agent,  person,  or  persons 
doing  a  fire  insurance  business  in  said  municipality,  whether 
members  of  said  corporation  or  not,  shall  have  a  right  to 
be  represented,  and  shall  be  entitled  to  one  vote.  A  ma- 
jority of  the  whole  number  so  represented  has  power  to  de- 
cide upon  the  question  of  sustaining  the  fire  patrol  or- 
ganized by  corporations  heretofore  created,  or  that  may  be 
hereafter  created,  and  fixing  the  maximum  amount  of  ex- 
penses which  may  be  incurred  therefor  during  the  fiscal 
year  next  to  ensue,  which  amount  must  in  no  case  exceed 
two  per  centum  of  the  aggregate  premiums  returned  as  re- 
ceived, as  provided  in  this  section,  and  the  whole  of  such 
amount,  or  so  much  thereof  as  may  be  necessary,  may  be 
assessed  upon  all  insurance  companies,  corporatiims,  asso- 
ciations, underwriters,  agents,  person,  or  persons  who  as- 
sume risks  and  accept  premiums  for  fire  insurance  in  said 
municipality,  as  hereinbefore  mentioned,  in  proportion  to 
the  several  amounts  of  premiums  returned,  as  received  by 
each,  as  hereinafter  provided,  and  such  assessment  is  col- 
lectilole  by  and  in  the  name  of  said  corporation,  in  any  court 
of   law   in   the    State    of    California    having   jurisdiction,   in 


4,9  CIVIL  CODE.  §  453<j 

such  manner  and  at  such  time  or  times  as  said  corporation 
may  determine.  In  order  to  provide  for  the  payment  of 
persons  employed  by  said  corporation,  and  to  maintain 
suitable  rooms,  and  apparatus  for  saving  life  and  property 
contemplated,  said  corporation  is  empowered  to  require  a 
statement  to  be  furnished,  semi-annually,  by  all  insurance 
companies,  corporations,  associations,  underwriters,  agents, 
or  persons,  of  the  aggregate  amount  of  premiums  received 
for  insuring  property  in  the  municipality  where  said  cor- 
poration is  organized  or  established,  for  and  during  the  six 
months  next  preceding  the  first  day  of  July  and  the  first 
day  of  January  of  each  year,  which  statement  must  be  sworn 
to  by  the  president  or  secretary  of  the  corporation  or  asso- 
ciation, or  by  the  agent  or  person  so  acting  or  effecting  such 
insurance  in  said  municipality,  and  must  be  handed  to  the 
secretary  of  said  corporation  heretofore  created  or  here- 
after to  be  created  under  the  provisions  of  this  chapter 
within  ten  days  after  the  first  day  of  July  and  the  first  day 
of  January  of  each  year.  Said  secretary  must,  within  the 
ten  days  aforesaid,  by  written  or  printed  demand  signed  by 
him,  require  from  every  insurance  company,  corporation, 
association,  underwriter,  agent,  or  person  engaged  in  the 
business  of  fire  insurance  in  the  municipality  where  said 
corporation  is  organized  or  established,  the  statement  here- 
inbefore provided  for.  Such  demand  may  be  delivered  per- 
sonally at  xhe  ofl&ce  of  such  insurance  company,  corpora- 
tion, association,  underwriter,  agent,  or  person  within  said 
municipality,  and  every  officer  of  such  insurance  company, 
corporation,  association,  and  every  such  underwriter,  agent, 
or  person,  who,  for  fifteen  days  after  said  demand,  neglects 
to  render  the  statement  herein  provided  for,  forfeits  fifty 
dollars  for  the  use  of  said  corporation,  and  also  forfeits 
for  its  use  twenty-five  dollars  in  addition  for  every  day 
he  so  neglects  after  the  expiration  of  the  said  fifteen  days, 
and  such  additional  penalty  may  be  computed  and  collected 
up  to  the  time  of  the  trial  of  any  action  brought  for  the 
recovery  thereof.  The  penalty  herein  provided  tor  may  be 
sued  for  and  collected,  with  costs,  in  any  court  of  law 
within  the  State  of  California  having  jurisdiction,  by  and 
in  the  name  of  said  corporation.  En.  Stats.  1905,  572. 
See  note  to  §  453ff,  ante. 
Civil  Code— 5 


S  453d  SUPPLEMENT.  60 

DIVISION  FIEST. 
PART  IV. 

TITLE  II. 

CHAPTER  VI. 
New  chapter  added  March  20,  1905.     Stats.  1905,  418. 

LIFE^  HEALTH,  ACCIDENT,  AND  ANNUITY  OR  ENDOWMENT 
INSURANCE  ON  THE  ASSESSMENT  PLAN, 

§  453(Z.     Contracts  which  may  be  made  by,  defined. 

§  453e.  Formation  of  corporations;  issuing  of  contracts; 
investments. 

§  4o3f.  Pre-existing  corporations,  right  of  to  reincorpor- 
ate. 

§  453.'7.     Contracts  of  insurance,  contents  and  effect  of. 

§  453ft.     Reserve  and  emergency  fund. 

§  453J.  Foreign  corporations,  conditions  precedent  to  do- 
ing business  in  this  state. 

§  453/.  Limitations  upon  right  to  issue  contracts  of  in- 
surance. 

§  453/i.     Exemptions  from   attach'Tient  and  execution. 

§  453/.  Statements  to  be  filed  with  the  insurance  commis- 
sioner; proceedings  to  be  taken  by  him  thereon. 

§  453??i.     Lapsing  of  policies  when  forbidden. 

§  453?i.     Fees  and  penalties. 

§  45S"o.  Insurance  commissioner  to  present  bills  for  cer- 
tain expenses. 

§  453p.  Exemption  of  fraternal  societies  from  this  chap- 
ter. 

§  453(Z.  Contracts  which  may  be  made  by,  defined.  Every 
contract  whereby  a  benefit  may  accrue  to  a  party  or  parties 
therein  named  upon  the  death  or  physical  disability  of  a 
person  insured  thereunder,  or  for  the  payment  of  any  sums 
of   money   dependent   in   any   degree   upon   the   collection  of 


51  CIVIL  CODE.  §  453e 

assessments  or  dues  from  persons  holding  similar  contracts, 
is  deemed  a  contract  of  mutual  insurance  upon  the  assess- 
ment plan.  Such  contracts  must  show  that  the  liabilities  of 
the  insured  thereunder  are  not  limited  to  fixed  premiums. 
En.  Stats.  1905,  418. 

453d,  453e,  453f,  453g,  453h,  453i,  453j,  453k,  4531,  453m, 
453n,  4530,  453p.  The  above  sections  are  a  codification  of 
the  statute  of  1891,  page  126,  relating  to  life,  health,  ac- 
cident, and  annuity  or  endowment  insurance  on  the  as- 
sessment plan.  They  are  placed  in  a  new  chapter,  entitled 
"Life,  Health,  Accident  and  Annuity  or  Endowment  In- 
surance on  the  Assessment  Plan.'' — Code  Commissioner's 
Note. 

§  453e.  Formation  of  corporations;  issuing  of  contracts; 
investments.  Corporations  may  be  formed  tc  carry  on  the 
business  of  mutual  insurance  upon  the  assessment  plan,  and 
are  subject  only  to  the  provisions  of  this  chapter.  No  such 
corporation  must  issue  contracts  of  insurance  until  at  least 
two  hundred  persons  have  applied,  in  writing,  for  member- 
ship or  insurance  therein^  and  have  paid  to  the  treasurer  of 
such  corporation  the  sum  of  five  thousand  dollars.  This  sum 
must  be  invested  in  bonds  or  securities,  approved  by  the  in- 
surance commissioner  of  this  state,  or  deposited  in  some  bank 
in  this  state  where  it  will  earn  interest.  Said  bonds  or  se- 
curities, or  evidences  of  such  deposit,  must  be  placed,  through 
the,  insurance  commissioner  of  this  state,  with  the  state 
treasurer,  and  the  principal  sum  must  be  held  in  trust  for 
the  contract-holders  of  such  corporation,  with  the  right  in 
the  corporation  to  exchange  said  bonds,  securities,  or  evi- 
dence of  bank  deposit  for  others  of  like  value.  Such  cor- 
poration must  also,  as  a  condition  precedent  to  issuing  any 
contracts  of  insurance,  obtain  the  written  certificate  of  the 
insurance  commissioner  that  it  has  complied  with  the  re- 
quirements of  this  chapter;  and  that  the  name  of  the  corpor- 
ation is  not  the  same  as  that  of  any  other  corporation  of  this 
or  other  states,  as  indicated  by  the  insurance  department  re- 
ports in  his  ofifice;  nor  must  the  commissioner  approve  any 
name  or  title  so  closely  resembling  another  as  to  mislead  the 
public.  No  corporation  formed  hereunder  has  legal  existence 
after  one  year  from  the  date  of  its  articles,  unless  its  organ- 
ization has  been  completed  and  business  commenced:  nor 
must  any  corporation  or  individual  solicit,  or  cause  to  be 
solicited,  any  business,  until  such  corporation  has  complied 
■with  the  provisions  of  section  six  hundred  and  thirty-three 


§§453f-453h  SUPPLEMENT.  52 

of   the  PoHtioal    Code.     Nothing   contained    in   this   chapter 
shall  be  construed  to  exempt  any  corporation  from  the  pro- 
visions of  sections  two  hundred  and  ninety-six  and  two  hun- 
dred and  ninety-nine  of  this  code.     En.  Stats.  1905,  418. 
See   note  to    §    4o3d,   ante. 

§  453f.  Pre-existing  corporations,  right  of  to  reincorpor- 
ate. Any  existing  corporation  engaged  in  the  business  of 
life,  health,  accident,  or  endowment  insurance  on  the  as- 
sessment plan  may  reincorporate  under  the  provisions  of  this 
code  and  chapter,  but  is  not  obliged  to  do  so,  and  may,  with- 
out such  reincorporation,  exercise  the  rights,  powers,  and 
privileges  conferred  by  this  chapter.     En.  Stats.  1905,  419, 

See  note  to  §  453d,  ante. 

§  453f;.     Contracts    of    insurance,  contents  and  effect  of. 

Every  contract  of  insurance  issued  by  such  corporation  must 
specify  the  sum  or  sums  to  be  paid  upon  the  happening  of 
the  contingency  insured  against,  and  when  such  payments 
must  be  made.  Unless  the  contract  is  invalidated  by  fraud 
or  by  breach  of  its  conditions,  the  corporation  is  obligated 
to  pay  the  beneficiary  the  amount  or  amounts  specified  in 
its  contract  at  the  time  or  times  therein  named,  and  such 
indebtedness  is  a  lien  upon  all  the  property  of  such  corpora- 
tion, with  priority  over  all  indebtedness  thereafter  incurred, 
except  as  hereinafter  provided  in  case  of  insolvency.  Fail- 
ure to  make  such  payment,  within  thirty  days  after  notice, 
at  the  home  office,  by  mail,  as  provided  by  law,  of  a  final 
judgment,  unless  waiver  is  made  by  the  beneficiary,  con- 
stitutes a  forfeiture  of  the  right  to  do  business.  En.  Stats. 
1905,  419. 

See  note  to  §  453(7,  ante. 

§  453/).  Reserve  and  emergency  fund.  Every  domestic 
corporation,  organized  to  do  or  doing  the  business  of  insur- 
ance on  the  assessment  plan,  must  accumulate  a  reserve  or 
emero-ency  fund,  which  must,  at  all  times,  be  not  less  than 
the  largest  benefit  contracted  to  be  paid  by  it  to  any  one 
person.  Every  corporation  organized  under  the  provisions 
of  this  chapter  must  accumulate  such  fund  within  a  year 
from  the  date  of  its  certificate  of  incorporation.  Such  fund, 
to  the  extent  of  the  largest  amount  contracted  to  be  paid 
by  any  such  corporation  to  any  one  person,  must  be  invested 


53  CIVIL  CODE.  §  453i 

anrl  deposited,  as  provided  in  section  four  hundred  and  fifty- 
three  c,  with  the  right  in  the  corporation  to  exchange  any 
such  securities  for  others  of  equal  value.  The  deposit  re- 
quired by  section  four  hundred  and  fifty-three  c  constitutes 
a  part  of  the  reserve  required  by  this  section,  at  the  option 
of  such  corporation.  When  any  such  corporation  discontin- 
ues business,  this  fund  must  be  returned  to  such  corporation, 
or  disposed  of  as  may  be  determined  by  the  superior  court 
of  the  county  in  which  is  its  principal  place  of  business.  En. 
Stats,   1905,"  419. 

See  note  to  §  45Sv7,  ante. 

§  453/.     Foreign  corporations,  conditions  precedent  to  do- 
ing business  in  this  state.     Corporations  organized  under  the 
laws  of  any  other  state  or  country  to  transact  the  business  of 
mutual  assessment  insurance  must,  as  a  condition  precedent 
to  transacting  business  in  this  state,  comply  with  the  provi- 
sions of  sections  four  hundred  and  five  and  four  hundred  and 
eight  of  this  code,  and  deposit  with  the  insurance  commis- 
sioner of  this  state  a  certified  copy  of  its  charter  or  other 
instrument   required   by   its   home    authorities;    a    statement 
under  oath,  of  its  president  or  secretary,  of  its  business  for 
the  preceding  year,  in  such  form  as  may  be  required  by  the 
insurance  commissioner  of  this  state;-  an  appointment  of  a 
general  agent,  service  upon  whom  binds  the  corporation;   a 
certificate  that  for  the  next  preceding  twelve  months  it  has 
paid  in  full  the  maximum  amount  named  in  its  contract  of 
insurance;   a  certificate  from  the  proper  officer  of  its  state 
or  government  that  like  corporations  of  this  state  are  legally 
entitled  to  do  business  in  such  state  or  country;  copies  of  its 
contracts   of   insurance    and   applications,   which   must   show 
that  the  liabilities  of  its  members  are  not  limited  to  fixed 
premiums;  and  evidence,  satisfactory  to  the  insurance  com- 
missioner, that  the  corporation  has  accvimulated  a  fund  equal 
to  that  required  of  like  corporations  in  this  state,  constitut- 
ing a  reserve  or  surplus  fund,  held  in  trust  for  the  benefit 
of  its  contract-holders,  and  so  invested  and  held  as  required 
by  the  laws  of  the  state   or  government  under  which   such 
corporation     was     organized.     The     insurance     commissioner 
must   thereupon   issue   a  license    to   such   corporation   to    do 
business  in  this  state.     This  license  must  be  renewed  annu- 
ally,  and   may  be   revoked  whenever  it   is   ascertained  that 
the  statements  required  to  be  made  by  this  section  are  not 


§§   453j,    453k  SUPPLEMENT.  64 

true.  Upon  such  revocation,  notice  thereof  must  be  given  by 
the  insurance  commissioner  by  publication  in  some  news- 
paper published  in  the  city  and  county  of  San  Francisco,  for 
two  weeks,  daily,  and  no  now  contracts  must  be  made  by 
such  company  in  this  state.  When  any  other  state  or  country 
imposes  any  additional  license,  fees,  taxes,  or  penalties  upon 
any  corporation  organized  or  doing  business  under  this  chap- 
ter, like  license,  fees,  taxes,  or  penalties  are  imposed  upon 
corporations  of  the  same  kind  and  their  agents  of  such  state 
or  country  doing  business  in  this  state.  En.  Stats.  1905,  419. 
See  note  to  §  453fZ,  ante. 

§  453/.  Limitations  upon  right  to  issue  contracts  of  in- 
surance. No  corporation  doing  business  under  this  chapter, 
except  accident  or  casualty  corporations,  must  issue  a  con- 
tract of  insurance  upon  the  life  of  any  person  under  fifteen 
nor  over  sixty-one  years  of  age.  Every  such  contract  of  in- 
surance must  be  founded  upon  written  application  therefor, 
and,  except  where  the  application  is  for  health,  accident,  or 
casualty  insurance  only,  or  for  one  hundred  dollars  life  in- 
surance or  less,  such  application  must  be  accompanied  by  the 
report  of  a  reputable  physician,  containing  a  detailed  state- 
ment of  his  examination  of  the  applicant,  showing  the  ap- 
plicant to  be  in  good  health,  and  recommending  the  issuance 
of  a  contract  of  insvirance.  Any  solicitor,  agent,  employe, 
examining  physician,  or  other  person,  making  a  false  or 
fraudulent  statement  to  any  corporation  doing  business  un- 
der this  chapter,  with  reference  to  any  application  for  in- 
surance, or  for  the  purpose  of  obtaining  any  money  or  bene- 
fit from  such  corporation,  is  guilty  of  a  misdemeanor;  and 
any  person  who  makes  a  false  statement  of  any  material  fact 
or  thing  in  a  sworn  statement  as  to  the  death  or  disability 
of  a  contract-holder,  in  any  such  corporation  for  the  purpose 
of  procuring  or  aiding  the  beneficiary  or  beneficiaries  or  con- 
tract-holder in  procuring  the  payment  of  a  benefit  named  in 
the  contract,  is  guilty  of  perjury.     En.  Stats,  1905,  420. 

See  note  to   §  453(Z,  ante. 

§  4537r.     Exemptions  from  attachment  and  execution.     The 

money,  benefit,  annuity,  endowment,  charity,  relief,  or  aid 
to  be  paid  as  provided  by  the  contracts  issued  by  any  corpora- 
tion doing  business  under  this  chapter,  is  not  liable  to  at- 
tachment  or  other  process,  nor  to   be  seized,  taken,   appro- 


55  CIVIL  CODE.  §§  4531,  453m 

printed,  or  applied  by  any  legal  or  equitable  process,  nor  by 
operation  of  law,  to  pay  any  debts  or  liability  of  the  contract- 
holder  or  any  beneficiary  named  thereunder.  En.  Stats.  1905, 
421. 

See  .note  to  §  453(7,  ante. 

§  4537.  Statements  to  be  filed  with  the  insurance  commis- 
sioner; proceedings  to  be  taken  by  him  thereon.  Every  cor- 
poration, whether  domestic  or  foreign,  doing  the  business  of 
effecting  insurance  on  the  assessment  plan  must,  annually, 
on  or  before  the  first  day  of  February,  file  with  the  insurance 
commissioner,  in  such  form  as  he  may  prescribe,  a  statement 
of  its  affairs  for  the  j-ear  ending  on  the  preceding  thirty-first 
day  of  December.  The  insurance  commissioner,  in  person  or 
by  duly  authorized  deputy,  has  the  power  of  examination 
into  the  affairs  of  any  domestic  corporation  doing  business  or 
claiming  to  do  business  under  this  chapter,  at  any  time,  in 
his  discretion,  and  must  make  such  examination  at  least 
once  a  year.  If  he,  after  an  examination  of  the  affairs  of  a 
corporation,  finds  that  it  is  not  doing  its  business  in  con- 
formity to  this  chapter,  or  that  it  is  doing  a  fraudulent  or 
unlawful  business,  or  that  it  is  not  carrying  out  its  terms  of 
contract,  or  that  it  cannot,  within  three  months  from  the 
date  of  notice  of  default,  pay  its  obligations,  he  must  cite 
the  president,  secretary,  manager,  or  general  agent  of  the 
corporation,  or  all  of  them,  to  appear  before  him,  stating 
the  time  and  place,  to  show  cause  why  the  authority  of  the 
corporation  to  do  business  should  not  be  revoked,  and  if 
cause  is  not  shown,  then  he  must  report  the  facts  to  the  at- 
torney-general of  the  state,  who  must  commence  proceed- 
ings in  the  proper  court  to  restrain  the  corporation  from, 
doing  any  further  business.     En.  Stats.  1905,  421. 

See  note  to  §  453(7,  ante. 

§  453/».  Lapsing  of  policies  when  forbidden.  Xo  policy 
or  certificate  issued  by  any  corporation  or  association  doing 
business  under  the  provisions  of  this  chapter  lapses  for  the 
nonpayment  of  any  assessments,  dues,  or  premiums,  unless  the 
corporation  or  association  has  first  mailed  to  the  insured 
under  such  policy  or  certificate,  at  his  or  her  last  given  post- 
office  address,  a  notice  setting  forth  the  amount  to  be  paid, 
and  the  time  the  same  is  due  and  payable;  and  such  notice 
must  be  mailed  at  least  fifteen  days  before  the  assessment 


§§  453n-453p  SUPPLEMENT.  66 

is  due;  provided,  that  such  corporations  doing  business  under 
this  chapter  as  collect  specific  amounts  at  specific  dates,  as 
contained  in  the  contract,  are  not  compelled  to  send  such 
notices;  and  an  affidavit  made  by  the  officer,  bookkeeper,  or 
clerk  of  any  such  corporation  having  charge  of  the  mailing 
of  notices,  setting  forth  the  facts  as  they  appear  on  the 
records  in  the  office  of  the  said  corporation,  showing  that 
such  notice  was  mailed  and  the  date  of  mailing,  is  cojiclusive 
evidence  of  the  mailing  of  such  notice.  En.  Stats.  1905,  421. 
See  note  to  §  453(/,  ante. 

§  453".  Fees  and  penalties.  The  fees  for  filing  state- 
ments, certificates,  or  other  documents  required  by  this  chap- 
ter, or  for  any  service  or  act  of  the  insurance  commissioner, 
and  the  penalties  for  any  violation  of  this  chapter,  must, 
except  as  otherwise  provided  herein,  be  the  same  as  pro- 
vided in  the  laws  of  this  state  relating  to  life  insurance 
companies,  and  must  be  disposed  of  as  provided  by  such 
laws.     En.  Stats.  1905,  422. 

See  note  to  §  453<Z,  ante. 

§  4530.  Insurance  commissioner  to  present  bills  for  cer- 
tain expenses.  For  all  lawful  expenses  under  this  chapter,  or 
by  reason  of  any  of  its  provisions,  in  the  prosecution  of  any 
suit  or  proceeding,  or  otherwise,  for  the  enforcement  of  the 
provisions  of  this  chapter,  the  insurance  commissioner  must 
present  bills,  duly  certified  by  him,  and  accompanied  with 
vouchers,  to  the  state  board  of  examiners,  who  may  allow 
the  same,  and  direct  payment  thereof  to  be  made;  and  the 
state  controller  must  draw  warrants  therefor  on  the  state 
treasurer  for  the  payment  of  the  same  to  the  insurance  com- 
missioner, out  of  the  general  fund,  in  addition  to  the  ordi- 
nary contingent   expense.     En.  Stats.  1905,  422. 

See  note  to  §  453d,  ante. 

§  453/).    Exemption  of  fraternal  societies  from  this  chapter. 

The  provisions  of  this  chapter  do  not  apply  tc  secret  or  fra- 
ternal societies,  lodges,  or  councils,  which  conduct  their  busi- 
ness and  secure  membership  on  the  lodge  system  exclusively, 
having  ritualistic  work  and  ceremonies  in  their  societies, 
lodges,  or  councils,  nor  to  any  mutual  or  benefit  association 
organized  or  formed  and  composed  of  members  of  any  such 
society,  lodge,  or  council  exclusively.  En.  Stats.  1905,  422. 
See  note  to  §  453(Z,  ante. 


57  CIVIL  CODE.  §§    465a  468 

§  465.  Snpp.  Cal.  Eep.  Cit.  Subd.  5—142.  392.  Subcl. 
8—142,  392.  Subd.  9—142,  392.  Subd.  11—142, 
392. 

§  4:65a.  Corporations,  railroad,  what  motive  power  may  be 
used;  authority  must  be  obtained.  Every  person  or  corpora- 
tion now  or  hereafter  authorized  to  operate  a  railroad  by 
steam  motive  power,  is  also  authorized  to  use  electricity  or 
compressed  air,  or  both,  either  with  or  without  such  steam, 
for  the  purpose  of  propelling^  cars  or  trains  on  such  railroad 
or  upon  any  portion  thereof.  In  incorporated  cities^  towns, 
or  cities  and  counties  having  more  than  five  thousand  inhabi- 
tants, authoritv  nmst  ]ie  obtained  from  the  legislative  au- 
thority thereof.     En.  Stats.  1905,  574. 

465a.  This  section  is  a  codification  of  the  statute  of  1893,  page 
208,  relating  to  the  operation  of  railroads. — Code  Commis- 
sioner's  Note. 

§  468.  Construction  of  road  must  be  commenced  and  con- 
tinued; operation.  Every  railroad  corporation  must,  within 
two  years  after  filing  its  original  articles  of  incorporation, 
begin  the  construction  of  its  road,  and  must  every  year  there- 
after complete  and  put  in  full  operation  at  least  five  miles 
of  its  road,  until  the  same  is  fully  completed;  and  upon  its 
failure  so  to  do,  for  the  period  of  one  year,  its  right  to  ex- 
tend its  road  beyond  the  point  then  completed  is  forfeited. 
After  the  completion  of  any  railroad,  or  any  part  thereof, 
capable  of  being  operated,  its  owner  must  operate  it,  and 
upon  his  failure  to  keep  it,  or  any  part  thereof,  in  full  oper- 
ation for  the  period  of  six  months,  his  right  to  operate  it  in 
whole  or  in  part,  as  the  case  may  be,  is  forfeited,  and  the 
lands  occupied  for  the  purposes  of  the  road,  so  far  as  the 
same  is  not  operated,  revert  to  the  original  owners  or  their 
successors  in  interest.  A  railroad  is  in  full  operation  when 
one  passenger  train,  or  one  mixed  train,  is  run  over  it  once 
a  day  in  each  direction  and  a  suflBcient  number  of  freight 
trains  to  accommodate  the  traffic  on  the  road.  If  a  railroad 
is  wholly  constructed  at  an  elevation  of  five  thousand  feet 
or  more  above  the  level  of  the  sea,  its  owner  is  not  required 
to  maintain  and  operate  it,  nor  to  run  passenger  or  other 
trains  thereon,  between  the  fifteenth  of  October  of  any  year 
and  the  fifteenth  of  May  of  the  year  following.  This  section 
must  not  be  construed  to  require  the  operation  of  a  road 
when  prevented  by  the  act  of  God,  nor  when  the  operation 


§§473a-481  SUPPLEMEXT.  58 

of  the  road,  together  with  its  branch  and  trunk  lines,  does 
not  yield  income  sufficient  to  defray  the  expenses  of  main- 
taining and  operating  it  in  connection  with  its  branch  and 
trunk  lines.  The  railroad  commissioners  have  the  power  to 
examine  and  determine  whether  a  railroad,  together  with 
its  branch  and  trunk  lines,  yields  income  sufficient  to  operate 
the  same.     En.  March  21,  1872.     Am'd,  1905,  574. 

468.  The  amendment  consists  in  codifying  and  adding  to  the  sec- 
tion the  provisions  of  the  statute  of  18S0,  page  43,  to 
compel  the  operation  of  railroads,  and  of  the  statute  of 
1897,  page  5,  to  provide  for  the  management  and  operation 
of  railroads  above  certain  elevations. — Code  Commissioner's 
Note. 

§  473r7.     Right  to  lease  or  use  another  road,  in  common. 

Pailroad  corporations  doing  business  in  tl'.is  state  and  organ- 
ized under  any  law  of  this  state  or  the  United  States,  or  of 
any  state  or  territory  thereof,  have  power  to  enter  into  con- 
tracts with  one  another,  whereby  the  one  may  lease  of  the 
other  the  whole  or  any  part  of  its  railroad,  or  may  acquire 
of  the  other  the  right  to  use,  in  common  with  it,  the  whole 
or  any  part  of  its  railroad.     En.  Stats,  1905,  575. 

473a.  Section  2  of  the  statute  of  1880,  page  21,  authorizina;  rail- 
way and  other  corporations  organized  under  the  laws  of 
this  state  or  of  any  state  or  territory  of  the  United  States 
to  do  business  in  this  state,  on  equal  terms,  is  codified 
in   this    section. — Code    Commissioner's   Note. 

§  481.  Time  of  running  cars  fixed  Toy  public  notice;  suffi- 
cient accommodations  to  be  furnished.  Every  such  corpora- 
tion must  start  and  run  its  cars,  for  the  transportation  of 
persons  and  property,  at  such  regular  times  as  it  shall  fix 
by  public  notice,  and  must  furnish  sufficient  accommodations 
for  the  transportation  of  all  such  passengers  and  property 
as,  within  a  reasonable  time  previous  thereto,  offer  or  are 
offered  for  transportation,  at  the  place  of  starting,  at  the 
junction  of  other  railroads,  and  at  siding  and  stopping- 
places  established  for  receiving  and  discharging  way  passen- 
gers and  freight;  and  must  take,  transport,  and  discharge  such 
passengers  and  property  at,  from,  and  to  such  places,  on  the 
due  payment  of  tolls,  freight,  or  fare  therefor.  En.  March 
21,  1872.     Am'd.  1905,  575. 

Supp.  Cal.  Eep.  Cit,     142,  392, 

481.  The  amendment  consists  in  the  substitution  of  the  word  "its" 
for  "their,"  and  the  substitution  of  "it"  for  "they," 
thus  correcting  errors  of  grammar.— Code  Commissioner's 
Note. 


59  CIVIL  CODE.  §§  482-493 

§  482.     Supp.  Cal.  Eep.  Cit.     142,  592. 

§  485.     Supp.  Cal.  Eep.  Cit.     141,  2S9. 

§  487.     Supp.  Cal.  Eep.  Cit.     145,  452. 

§  489.  Rates  of  charges  established  by  railroad  commis- 
sioners. Whenever  the  board  of  railroad  commissioners,  in 
the  discharge  of  its  duties,  establishes  or  adopts  rates  of 
charges  for  the  transportation  of  passengers  and  freight, 
pursuant  to  the  provisions  of  the  constitution,  said  board 
must  serve  a  printed  schedule  of  such  rates,  and  of  any 
changes  that  may  be  made  in  such  rates,  upon  the  person, 
copartnership^  company,  or  corporation  affected  thereby;  and 
upon  such  service  it  is  the  duty  of  such  person,  copartner- 
ship, company,  or  corporation  to  immediately  cause  copies 
of  the  same  to  be  posted  in  all  its  offices,  station  houses, 
warehouses,  and  landing  offices  affected  by  such  rates,  or 
change  of  rates,  in  such  manner  as  to  be  accessible  to  public 
inspection  during  usual  business  hours.  Said  board  must 
also  make  such  further  publication  thereof  as  it  deems 
proper  and  necessary  for  the  public  good.  If  the  party  to 
be  served  is  a  corporation,  such  service  may  be  made  upon 
the  president,  vice-president,  secretary^  or  managing  agent 
thereof,  and  if  a  copartnership,  upon  any  partner  thereof. 
The  rates  of  charges  established  or  adopted  by  said  board, 
pursuant  to  the  constitution  and  the  laws  of  this  state,  must 
go  into  force  and  effect  on  the  twentieth  day  after  service 
of  such  schedule  of  rates,  or  changes  in  rates,  upon  the 
person,  copartnership,  company,  or  corporation  affected 
thereby.     En.  March  21,  1872.     Am'd.  1905,  575. 

489.  Section  11  of  the  statute  of  1880,  page  47,  defining  the  pow- 
ers of  the  board  of  railroad  commissioners,  is  substituted 
in  place  of  the  present  section  489.  The  section  has  been 
inoperative  since  the  adoption  of  the  Constitution  of  1879. 
Code   Commissioner's  Note. 

§  490.     Supp.  Cal.  Eep.  Cit.     144,  1S8, 

§  493.  Law  to  apply  to.  The  provisions  of  section  four 
hundred  and  ninety-two  shall  apply  to  any  railway  corpora- 
tion heretofore  or  hereafter  incorporated.  En.  Stats.  1895, 
242.     Am'd.   1905,  576. 


8§  494-514  SUPPLEMENT.  60 

493.  The  change  consists  in  the  substitution  of  the  words    "section 

four    hundred    and    ninety-two''    in    place    of    ''act.'' — Cod© 
Commissioner's    Note. 
The  section  492  referred  to  in  this  section  provided  for  the  grant- 
ing of  franchises  to  construct  elevated  or  underground  roads. 

§  494.     En.  Stats.  1899,  178.     Eep.  1905,  576. 

494.  In   1899   a  section  relating  to  the  sale  of  railroads  was  added 

to  the  Code,  and  numbered  494.  In  1903  a  new  section 
was  added,  also  numbered  494,  and  clearly  intended  to 
supersede  the  old  section  494.  Accordingly,  it  is  thought 
advisable  to  repeal  the  earlier  section. — Code  Commission- 
er's Note. 

§  497.     Supp.     Cal.     Eep.     Cit.     142,     228. 

§  513.  Survey  and  map  of  road  filed  with  supervisors; 
survey,  if  approved.  When  the  route  is  surveyed  a  map 
thereof  must  be  submitted  to  and  filed  with  the  board  of 
supervisors  of  each  county  through  or  into  which  the  road 
runs,  giving  its  general  course,  and  the  principal  points  to 
or  by  which  it  runs,  and  its  width,  which  must  in  no  case 
exceed  one  hundred  feet,  and  the  supervisors  must  either 
approve  or  reject  the  survey.  If  approved,  it  must  be  en- 
tered of  record  on  the  journal  of  the  board,  and  such  ap- 
proval authorizes  the  use  of  all  public  lands  and  highways 
over  which  the  survey  runs;  but  the  board  of  supervisors 
must  require  the  corporation,  at  its  own  expense,  and  the 
corporation  must  so  change  and  open  the  highways  so  taken 
and  used  as  to  make  the  same  as  good  as  before  the  appro- 
priation thereof;  and  must  so  construct  all  crossings  of 
public  highways  over  and  by  its  road  and  toll  gates,  as 
not  to  hinder  or  obstruct  the  use  of  the  same.  En.  March 
21,  1872.     Am'd.   1905,  577. 

513.  The  change  consists  in  the  omission  of  the  words  "they  were" 
before  the  word  "before."  The  omission  does  not  change 
the    meaning   of    the    section. — Code    Commissioner's    Note. 

§  514.  Bridges  or  ferries  on  line  of;  tolls;  franchises  for- 
feited, when.  All  wagon  road  corporations  may  bridge  or 
keep  ferries  on  streams  on  the  line  of  their  road,  and  must 
do  all  things  necessary  to  keep  the  same  in  repair.  They 
may  take  such  tolls  only  on  their  roads,  ferries,  or  bridges, 
as  are  fixed  by  the  board  of  supervisors  of  the  proper  county 
through  which  the  road  passes,  or  in  which  the  ferry  or 
bridge  is   situate.     But   in   no   case   must   the   tolls  be   more 


61  CIVIL  CODE.  §§  517-522 

than  sufficient  to  pay  fifteen  per  cent,  nor  less  than  ten  per 
cent  per  annum,  on  the  cost  of  construction,  after  paying 
for  repairs  and  other  expenses  for  attending  to  the  roads, 
bridges,  or  ferries.  If  tolls,  other  than  as  herein  provided, 
are  charged  or  demanded,  the  corporation  forfeits  its  fran- 
chise, and  must  pay  to  the  party  so  charged  one  hundred  dol- 
lars as  liquidated  damages.  En.  March  21,  1872.  Am'd. 
1873-4,  214;   1873-4,  272;   1905,  577. 

514.  The  change  consists  in  the  omission  of  that  part  of  the  sec- 
tion excepting  from  its  operation  the  counties  of  Butte, 
Del  Norte,  Humboldt,  Klamath,  Plumas,  and  Sierra.— Code 
Commissioner's    Note. 

§  517.  Persons  detained  until  toll  is  paid.  Each  toll- 
gatherer  may  prevent  from  passing  through  his  gate  any 
person,  animal,  or  vehicle,  subject  to  toll,  until  the  toll  au- 
thorized to  be  collected  for  such  passing  has  been  paid.  En. 
March  21,  1872.     Am'd.  1905,  577, 

517.  The    section    as    it    now    stands    authorizes    the    toll-gatherer    to 

prevent  from  passing  through  his  gate  persons  leading  or 
driving  animals  or  vehicles  subject  to  toll.  The  form  of 
the  section  has  been  changed  to  express  what  was  doubt- 
less originally  intended  by  the  legislature. — Code  Commis- 
sioner's   Note. 

§  518.  Persons  unnecessarily  detained  or  overcharged, 
damages.  Every  toll-gatherer  who,  at  any  gate,  unreason- 
ably hinders  or  delays  any  traveler  or  passenger  or  any 
vehicle  or  animal  liable  to  the  payment  of  toll,  or  demands 
or  receives  from  any  person  more  than  he  is  authorized  to 
collect,  for  each  offense  forfeits  the  sum  of  twenty-five  dol- 
lars to  the  person  aggrieved.  En.  March  21,  1872.  Am'd. 
1905,  578. 

518.  The    change    consists    in    the    insertion    of    the    words    "or    any 

vehicle  or  animal"  after  "passenger."— Code  Commission- 
er's Note. 

§  522.     Property     may    be    mortgaged    or     hypothecated. 

The  corporation  may  mortgage  or  hypothecate  its  road  and 
other  property  for  funds  with  which  to  construct  or  repair 
its  road,  but  no  mortgage  or  hypothecation  is  valid  or  bind- 
ing unless  at  least  twenty-five  per  cent  of  the  capital  stock 
subscribed  has  been  paid  in  and  invested  in  the  construc- 
tion of  the  road  and  appurtenances,  and  then  only  after  an 
Civil  Code— 6 


§§  524-529  SUPPLEMENT.  62 

affirmative    vote    of    two    thirds    of    the    capital    stock    sub- 
scribed.    En.   March   21,   1872.     Am'd.   1905,   578. 

522.  The  change  consists  in  the  substitution  of  the  word  "its" 
in  place  of  "their,"'  thus  correcting  an  error  of  grammar. — 
Code   Commissioner's  Note. 

§  524.  Franchises  granted  for  construction  of  roads  for 
use  of  horseless  vehicles.  The  legislative  or  other  body  to 
whom  is  intrusted  the  government  of  any  county,  city  and 
county,  city,  or  town,  may,  imder  such  regulations,  restric- 
tions, and  limitations  as  it  may  provide,  subject  to  existing 
laws,  grant  franchises  for  the  construction  of  paths  and 
roads,  either  on  the  surface,  elevated,  or  depressed,  on,  over, 
across,  or  under  the  streets  and  public  highways  of  any 
such  county,  city,  or  town,  for  the  use  of  bicycles,  tricycles, 
motorcycles,  and  other  like  horseless  vehicles,  for  a  term 
not  exceeding  fifty  years.  In  incorporated  cities  no  fran- 
chise must  be  granted  for  the  purpose  herein  expressed,  un- 
less the  consent  in  writing  of  the  owners  of  a  majority  of 
the  frontage  upon  the  road  or  street  along  which  said  path 
or  road  is  sought  to  be  constructed,  is  first  had  and  ob- 
tained, and  filed  with  such  legislative  or  governing  body. 
En.  Stats.  1905,  578. 

624.  The  statute  of  1897,  page  191,  authorizing  municipal  corpora- 
tions to  construct  paths  and  roads  for  the  use  of  bicycles 
and  other  horseless  vehicles,  is  codified  in  this  section.— 
Code   Commissioner's  Note. 

§  528.  Toll  not  be  collected  without  authority.  No  cor- 
poration must  construct,  or  take  tolls  on  a  bridge,  ferry, 
wharf,  chute,  or  pier  until  authority  is  granted  therefor  by 
the  supervisors,  or  other  governing  body  having  authority 
in  that  behalf.     En.  March  21,  1872.     Am'd.  1905,  579. 

528.  The  change  consists  in  the  insertion  of  the  words  "or  other 
governing  body  having  authority  in  that  behalf,"  after 
"supervisor." — Code    Commissioner's    Note. 

§  529.  Corporate  existenee  ceases,  when.  Every  such 
corporation  ceases  to  be  a  body  corporate: 

1.  If,  within  six  months  from  filing  its  articles  of  incor- 
poration, it  has  not  obtained  such  authority  from  the  board 
of  supervisors,  or  other  governing  body  having  authority  in 
that  behalf;  and  if,  within  one  year  thereafter,  it  has  not 
commenced  the  construction  of  the  bridge,  wharf,  chute,  or 


63  CIVIL  CODE.  |  530 

pier,   and   actucally  expended   thereon   at   least   ten   per   cent 
of  the  capital  stock  of  the  corporation; 

2.  If,  within  three  years  from  filing  the  articles  of  incor- 
poration, the  bridge,  wharf,  chute,  or  pier  is  not  completed; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  cor- 
poration is  destroyed,  it  is  not  reconstructed  and  ready  for 
use  within   three  years  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running 
order  within  three  months  after  authority  is  obtained  to 
establish  it,  or  if  at  any  time  thereafter  it  ceases  for  a  like 
term  consecutively  to  perform  the  duties  imposed  by  law. 
En.  March  21,  1872.     Am'd.  1905,  579. 

529.  The  change  consists  in  the  insertion  of  the  words  "or  other 
governing  body  having  authority  in  that  behalf,"  after 
"supervisors." — Code   Commissioner's  Note. 

§  530.  Annual  report  to  supervisors.  The  president  and 
secretary  of  every  bridge,  ferry,  wharf,  chute,  or  pier  cor- 
poration must  annually,  under  oath,  report  to  the  board  of 
supervisors,  or  other  governing  body  having  authority  in 
that  behalf,  of  the  county  in  which  the  articles  of  incorpo- 
ration are  filed: 

1.  The  cost  of  constructing  and  providing  all  necessary 
appendages  and  appurtenances  for  its  bridge,  ferry,  wharf, 
chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its 
construction,  for  repairs  and  incidental  expenses; 

3.  The  amount  of  its  capital  stock,  how  much  paid  in,  and 
how  much  actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls,  and  from 
all  other  sources,  stating  each  separately; 

5.  The  amount  of  dividends  made,  and  the  indebtedness 
of  the  corporation,  specifying  for  what  it  was  incurred; 

6.  Such  other  facts  and  particulars  respecting  the  busi- 
ness of  the  corporation,  as  the  board  of  supervisors  or  other 
governing  body  having  authority  in  that  behalf  may  re- 
quire. 

This  report  the  president  and  secretary  must  cause  to  be 
published  for  four  weeks  in  a  daily  newspaper  published 
nearest  the  bridge,  ferry,  wharf,  pier,  or  chute,  if  required 
by  order  of  the  board  of  supervisors  or  other  governing 
body  having  authority  in  that  behalf.  A  failure  to  make 
such  report  subjects  the  corporation  to  a  penalty  of  two 
hundred    dollars,    and   for    every   week   permitted    to    elapse 


§  536  SUPPLEMENT.  64 

after  such  failure  an  additional  penalty  of  fifty  dollars,  pay- 
able in  each  case  to  the  county  from  which  the  authority 
of  the  corporation  was  derived.  All  such  cases  must  be  re- 
ported by  the  board  of  supervisors,  or  other  governing  body 
having  authority  in  that  behalf,  to  the  district  attorney 
or  city  attorney,  who  must  commence  an  action  therefor. 
En.    March    21,    1872.     Am'd.    1905,    579. 

530.  The  change  consists  in  the  insertion  of  the  words  "or  other 
governing  body  having  authority  in  that  behalf,"  after 
"supervisors." — Code   Commissioner's  Note. 


DIVISIOX  FIRST. 
PAET  IV. 

TITLE  VII. 

Old    title   repealed    and    new   title   added    March   20,   1905. 
Stats.  1905,  492. 

TELEGRAPH    AXD   TELEPHONE    CORPORATIOXS. 

§  536.  May  use  right  of  way  along  waters,  roads,  and 
liighways. 

§  537.  Liability  for  damaging  telegraph  or  telephone 
property. 

§  538.  Penalty  for  willfully  or  maliciously  injuring  tele- 
graph or  telephone  property. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable 
may   be   recovered. 

§  540.     May  dispose  of  certain  rights. 

§  536.  May  use  right  of  way  along  waters,  roads,  and 
highways.  Telegraph  or  telephone  corporations  may  con- 
struct lines  of  telegraph  or  telephone  lines  along  and  upon 
any  public  road  or  highwaj^,  along  or  across  any  of  the 
waters  or  lands  within  this  state,  and  may  erect  poles,  posts, 
piers,  or  abutments  for  supporting  the  insulators,  wires,  and 
other  necessary  fixtures  of  their  lines,  in  such  manner  and 


65  CIVIL   CODE.  §§537-539 

at  such  points  as  not  to  incommode  the  public  use  of  the 
road  or  highway  or  interrupt  the  navigation  of  the  waters. 
En.  March  21,  1872.     Eep.  1905,  492.     En.  1905,  492. 

536,  537,  538,  539,  540.  The  change  consists  in  the  insertion  of 
the  words  ''or  telephone''  after  the  word  "telegraph," 
thus  including;  telephone  companies  within  the  operation 
of   the    above    sections. — Code    Commissioner's    Note. 

§  537.  Liability  for  damaging  telegraph  or  telephone 
property.  Any  person  who  injures  or  destroys,  through  want 
of  proper  care,  any  necessary  or  useful  fixture  of  any  tele- 
graph or  telephone  corporation,  is  liable  to  the  corporation 
for  all  damages  sustained  thereby.  Any  vessel  which,  by 
dragging  its  anchor,  or  otherwise,  breaks,  injures,  or  de- 
stroys the  subaqueous  cable  of  a  telegraph  or  telephone 
corporation,  subjects  its  owner  to  the  damages  hereinbefore 
specified.  En.  March  21,  1872.  Eep.  1905,  492.  En.  1905, 
492. 

See  note  to  §  536,  ante, 

§  538.  Penalty  for  willfully  or  maliciously  injuring  tele- 
graph or  telephone  property.  Any  person  who  willfully  and 
maliciously  does  any  injury  to  any  telegraph  or  telephone 
property,  mentioned  in  the  preceding  section,  is  liable  to 
the  corporation  for  one  hundred  times  the  amount  of  actual 
damages  sustained  thereby,  to  be  recovered  in  any  court  of 
competent  jurisdiction.  En.  March  21,  1872.  Eep.  1905, 
492.     En.   1905,  492. 

See  note  to  §  536,  ante. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable 
may  be  recovered.  No  telegraph  or  telephone  corporation  can 
recover  damages  for  the  breaking  or  injuring  of  any  sub- 
aqueous telegraph  or  telephone  cable,  unless  such  corpora- 
tion has  previously  erected  on  either  bank  of  the  waters 
under  which  the  cable  is  placed,  a  monument,  indicating  the 
place  where  the  cable  lies,  and  publishes  for  one  month  in 
some  newspaper  most  likely  to  give  notice  to  navigators, 
a  notice  giving  a  description  and  the  purpose  of  the  monu- 
ments, and  the  general  course,  landings,  and  termini  of  the 
cable.     En.  March  21,  1872.     Eep.  1905,  492.     En.  1905,  492. 

See  note  to  §  536,  ante. 


§§  540-551  SUPPLEMENT.  60 

§  540.  May  dispose  of  certain  rights.  Any  telegraph  or 
telephone  corporation  may  at  any  time,  with  the  consent  of 
the  persons  holding  two  thirds  of  the  issued  stock  of  the 
corporation,  sell,  lease,  assign,  transfer,  or  convey  any 
rights,  privileges,  franchises,  or  property  of  the  corporation, 
except  its  corporate  franchise.  En.  March  21,  1872.  Kep. 
1905,  492.     En.  1905,  493. 

See  note  to  §  536,  ante. 

§  549.  Must  furnish  water  for  family  use  upon  demand. 
All  corporations  formed  to  supply  water  to  cities  or  towns 
must  furnish  pure  fresh  water  to  the  inhabitants  thereof, 
for  family  uses,  so  long  as  the  supply  permits,  at  reason- 
able rates  and  without  distinction  of  persons,  upon  proper 
demand  therefor;  and  must  furnish  water  to  the  extent  of 
their  means,  in  case  of  fire  or  other  great  necessity,  free  of 
charge.  The  board  of  supervisors,  or  the  proper  city  or 
town  authorities,  may  prescribe  proper  rules  relating  to  the 
delivery  of  water,  not  inconsistent  with  the  laws  of  the 
state.     En.  March  21,  1872.     Am'd.  1873-4,  216;  1905,  ^80. 

549.  The   change   consists  in  the  omission  of  the   two  sentences  fol- 

lowing the  word  "charge,"  which  are  now  a  part  of  the 
section,  said  sentences  having  been  superseded  by  the 
provisions  of  tlie  Constitution  of  1879,  providing  for  the 
mode  in  which  water  rates  shall  be  fixed. — Code  Commis- 
sioner's   Kote. 

§  550.     En.  March  21,  1872.     Eep.  1905,  580. 

550.  This   section   is   an   expression   of   the   constitutional   provisions 

found  in  the  Constitution  of  1849,  respecting  the  right  of 
corporations  to  use  streets  for  laying  water  pipes. — Code 
Commissioner's    Note. 

§  551.  Construction  of  canal,  etc.  No  canal,  flume,  or 
other  appliance  for  the  conducting  of  water  must  be  so 
laid,  constructed,  or  maintained  as  to  obstruct  any  public 
highway;  and  every  person  or  corporation  owning,  main- 
taining, operating,  or  using  any  such  canal,  flume,  or  ap- 
pliance, crossing  or  running  along  any  public  highway,  must 
construct,  maintain,  and  keep  in  repair  such  bridges  across 
the  same  as  may  be  necessary  to  the  safe  and  convenient 
use  of  such  highway  by  the  public ;  and  on  failure  so  to 
do,  the  board  of  supervisors  of  the  county,  after  seven  days 
notice  in  writing  to  said  person  or  corporation,  may  con- 
struct or  repair  such  bridge  or  bridges,  and  recover  of  such 


67  CIVIL  CODE.  §§  580-583b 

person  or  corporation  the  amount  of  the   expenditure  made 
in  so  doing.     En.  March  21,  1872.     Am'd.  1905,  580. 

551.  The  design  of  the  amendment  is  to  better  express  the  purpose 
of  the  present  section  and  to  remove  the  objections  that  it- 
may  be  unconstitutional  in  investing  the  supervisors  with 
an  arbitrary  power  to  require  or  not  require  bridges,  and 
to  supply  the  present  defect  in  not  providing  any  means 
of  coercing  the  performance  of  the  duty  created. — Code 
Commissioner's    Note. 

§  580.  Corporations,  "bankins;  amount  of  capital  stock 
required.  No  savings  bank,  or  bank,  or  banking  corpora- 
tion, shall  be  incorporated  in  this  state  and  conduct  such 
banking  business  in  a  city  or  town  of  five  thousand  inhabi- 
tants or  under  with  a  capital  stock  of  less  than  twenty-five 
thousand  dollars,  .or  in  a  city  or  town  of  over  five  thou- 
sand and  not  exceeding  ten  thousand  inhabitants  with  a 
capital  stock  of  less  than  fifty  thousand  dollars,  or  in  a  city 
or  town  of  over  ten  thousand  and  not  exceeding  twenty-five 
thousand  inhabitants  with  a  capital  stock  of  less  than  one 
hundred  thousand  dollars,  or  in  a  city  or  town  of  over 
twenty-five  thousand  inhabitants  with  a  capital  stock  of 
less  than  two  hundred  thousand  dollars.  Before  the  sec- 
retary of  state  issues  to  any  corporation  that  proposes  to  do 
a  banking  business  his  certificate  of  the  filing  of  the  articles 
of  incorporation,  there  must  be  filed  in  his  office  the  affidavit 
of  the  persons  named  in  said  articles  as  the  first  directors  of 
the  corporation,  that  all  the  capital  stock  has  been  actually 
and  in  good  faith  subscribed,  and  at  least  fifty  per  centum 
thereof  paid,  in  lawful  money  of  the  United  States,  to  a  per- 
son in  such  affidavit  named,  for  the  benefit  of  the  corpora- 
tion. The  remainder  of  the  capital  stock  required  by  law 
must  be  paid  in  within  two  years  after  said  banking  cor- 
poration receives  its  certificate  of  incorporation,  and  if  not 
so  paid  said  banking  corporation  shall  not  be  authorized  to 
do  business;  provided  lioicevcr,  that  the  provisions  of  this 
section  shall  not  apply  to  corporations  now  in  existence. 
En.  Stats.  1903,  87.     Am'd.  1905,  507. 

§  583?).  Corporations,  banking,  must  biennially  report  to 
bank  commissioners  statement  of  unclaimed  deposits;  pub- 
lication of  same.  The  president  of  every  savings  bank,  sav- 
ings and  loan  society,  and  every  other  bank,  depository, 
society,  or  institution  in  which  deposits  of  money  are  made, 
•whether   any  interest   or   dividend  is  paid,   or  agreed   to   be 


§  583b  SUPPLEMENT.  68 

paid,  tliereon  or  not,  must,  within  fifteen  clays  after  the  first 
day  of  January  of  every  odd-numbered  year,  return  to  the 
board  of  bank  commissioners  a  sworn  statement  showing  the 
amount  placed  to  his  credit,  the  last  known  place  of  resi- 
dence or  postoffice  address,  and  the  fact  of  death,  if  known 
to  such  president,  of  every  depositor  who  has  not  made  a  de- 
posit therein  or  withdrawn  therefrom  any  part  of  his  deposit, 
or  any  part  of  the  interest  or  dividends  thereon,  for  a  period 
of  more  than  ten  years  next  preceding.  Such  president  must 
give  notice  of  these  deposits  in  one  or  more  newspapers 
published  in  or  nearest  the  town,  city,  or  city  and  county 
where  such  bank,  society,  or  other  institution  is  situated  or 
has  its  principal  place  of  business,  at  least  once  a  week  for 
four  successive  weeks,  the  cost  of  such  publication  to  be 
paid  pro  rata  out  of  such  unclaimed  deposits.  This  section 
does  not  apply  to  any  deposit  made  by  or  in  the  name  of  a 
person  known  to  the  president  to  be  living,  or  which,  with 
the  accumulation  thereon,  is  less  than  fifty  dollars.  The 
board  of  bank  commissioners  must  incorporate  in  their  sub- 
sequent report  each  return  made  to  them  as  provided  in  this 
section.  Any  president  of  any  of  the  institutions  mentioned 
in  this  section  who  neglects  or  refuses  to  make  the  sworn 
statement  required  thereby  is  guilty  of  a  misdemeanor. 

Sec.  2.  The  act  entitled  "An  act  to  compel  savings  banks 
to  publish  a  sworn  statement  of  all  unclaimed  deposits,"  ap- 
proved March  23,  1893,  is  hereby  repealed. 

Sec.  3.  The  act  entitled  "An  act  to  compel  all  deposi- 
taries of  money  and  commercial  banks  to  publish  a  sworn 
statement  of  all  unclaimed  deposits"  approved  February  25, 
1897,  is  hereby  repealed.     En.  Stats,  1905,  581. 

583b,  This  section  is  a  codification  of  the  statutes  of  1893,  page 
183,  and  1897,  page  27,  the  only  change  made  being  in 
the  provisions  concerning  the  person  who  is  to  make  the 
report.  The  original  statute  provided  that  the  report  should 
be  made  by  the  president  or  secretary.  It  has  been 
thought  best  to  impose  the  duty  upon  a  single  officer,  so 
that  it  cannot  be  evaded  by  one  officer,  by  his  saying  that 
it  was  the  duty  of  the  other,  or  that  he  had  supposed  the 
Other  had,  or  would,  perform  it.— Code  Commissioner's  Note. 


69  CIVIL  CODE.  §  5S6 

DIVISION  FIRST. 
PART  IV. 

TITLE  XI. 

Old  title  repealed  and  new  title  substituted  March  21,  1905. 
Stats.  1905,  584. 

MINING  CORPORATIONS. 

§  585.     Eepealed. 

§  586.     Transfer  agencies. 

§  587.     Stock  issued  at  transfer  agencies. 

§  5S7a.  Consolidation  of  mining  corporations. 

§  588.     Books  and  balance  sheets  to  be  kept  by  secretary. 

Stockholders'  right  tg  inspect. 

§  589.     Eight  of  stockholders  to  visit  mine  with  expert. 

§  590.     Liability  of  presidents   and   directors. 

§  585.     En.  March  21,  1872.     Eep.  1905,  5S4. 

§  586.  Transfer  agencies.  Any  corporation  organized  in 
this  state  for  the  purpose  of  mining  or  carrying  on  mining 
operations  in  or  without  this  state,  may  establish  and  main- 
tain agencies  in  other  states  of  the  United  States,  for  the 
transfer  and  issuing  of  their  stock;  and  a  transfer  or  issue 
of  the  same  at  any  such  transfer  agency,  in  accordance  with 
the  provisions  of  its  by-laws,  is  valid  and  binding  as  fully 
and  effectually  for  all  purposes  as  if  made  upon  the  books 
of  such  corporation  at  its  principal  office  within  this  state. 
The  agencies  must  be  governed  by  the  bj--laws  and  the  di- 
rectors of  the  corporation.  En.  March  21,  1372.  Kep.  1905, 
584.     En.  1905,  584. 

Supp.  Cal.  Eep.  Cit.     142,  392. 

586,  587,  587a.  Revises  the  whole  of  Title  XI  of  Part  IV  of  Di- 
vision. First  of  the  Civil  Code,  respecting  mining  corpora- 
tions. Sections  586  and  587  are  not  changed,  but  simply 
re-enacted.  Section  587a  contains  substantially  the  matter 
now  in  section  361,  the  word  ''corporations"  being  sub- 
Btitute/I    for    'companies,"    and    the    words    "and    to    cause 


§§  587,  587»  STJPPLEMENT.  70 

notice  of  the  time  and  place  fixed  for  such  mooting  to  be 
mailed  to  each  stockholder  of  each  of  such  corporations  at 
his  last  known  place  of  residence  or  business  at  least  ten 
days  before  the  time  fixed  for  such  meeting' '  being  in- 
serted. The  matter  added  is  designed  to  provide  the  mode 
in  which  notices  may  be  served  on  stockholders. — Code  Com- 
missioner's note. 

§  587.  Stock  issued  at  transfer  agencies.  All  stock  of 
any  sneh  corporation,  issued  at  a  transfer  agency,  must  be 
signed  by  the  president  and  secretary  of  the  corporation,  and 
countersigned  at  the  time  of  its  issue  by  the  agent  having 
charge  of  the  transfer  agency.  No  stock  must  be  issued  at 
a  transfer  agency  unless  the  certificate  of  stock,  in  lieu  of 
which  the  same  is  issued,  is  at  the  time  surrendered  for  can- 
cellation. En.  March  21,  1872.  Eep.  1905,  585.  En.  1905, 
CS5. 

See  note  to  §  586,  ante. 

§  587fr.  Consolidation  of  mining  corporations.  It  is  law- 
ful for  two  or  more  corporations  formed,  or  that  may  here- 
after be  formed,  under  the  laws  of  this  state,  for  mining 
purposes,  which  own  or  possess  mining  claims  or  lands  ad- 
joining each  other,  or  lying  in  the  same  vicinity,  to  con- 
solidate their  capital  stock,  debts,  property,  assets,  and  fran- 
chises, in  such  manner  and  upon  such  terms  as  may  be 
agreed  upon  by  the  respective  boards  of  directors  or  trus- 
tees of  such  corporations  so  desiring  to  consolidate  their  in- 
terests; but  no  such  consolidation  must  take  place  without 
the  written  consent  of  the  stockholders  representing  two 
thirds  of  the  capital  stock  of  each  corporation,  and  no  such 
consolidation  can,  in  any  way,  relieve  such  corporations,  or 
the  stockholders  thereof,  from  any  and  all  just  liabilities; 
and  in  ease  of  such  consolidation,  due  notice  of  the  same 
must  be  given,  by  advertising,  for  one  month,  in  at  least 
one  newspaper  in  the  county  where  the  said  mining  property 
is  situated,  if  there  is  one  published  therein,  and  also  in  one 
newspaper  published  in  the  county  where  the  principal  place 
of  business  of  any  of  said  corporation  is.  And  when  the 
consolidation  is  completed,  a  certificate  thereof,  containing 
the  manner  and  terms  of  such  consolidation,  must  be  filed 
in  the  office  of  the  county  clerk  of  the  county  in  which  the 
original  certificate  of  incorporation  of  each  of  said  corpora- 
tions is  filed,  and  a  copy  thereof  must  be  filed  in  the  office 
of  the  secretary  of  state;  such  certificate  must  be  signed  by 


71  CIVIL  CODE.  §  588 

a  majority  of  each  board  of  trustees  or  directors  of  the 
original  corporations,  and  it  is  their  duty  to  call,  within 
thirty  days  after  the  filing  of  such  certificate,  a  meeting  of 
the  stockholders  of  all  of  said  corporations  so  consolidated, 
to  elect  a  board  of  trustees  or  directors  for  the  consolidated 
corporation,  for  the  year  thence  next  ensuing;  and  to  cause 
notice  of  the  time  and  place  fixed  for  such  meeting  to  be 
mailed  to  each  stockholder  of  each  of  such  corporations  at 
his  last  known  place  of  residence  or  business  at  least  ten 
days  before  the  time  fixed  for  such  meeting.  The  said  cer- 
tificate must  also  contain  all  the  requirements  prescribed  by 
section  two  hundred  and  ninety.  En.  Stats.  1905,  585. 
See  note  to  §  586,  ante. 

§  588.  Books  and  balance  sheets  to  be  kept  by  secretary; 
stockholders'  right  to  inspect.  It  is  the  duty  of  the  secretary 
of  every  corporation  formed  for  the  purpose  of  mining,  or  con- 
ducting mining  in  California,  whether  such  corporation  be 
formed  and  organized  under  the  laws  of  the  State  of  Califor- 
nia or  of  any  other  state,  territory,  or  foreign  country,  to  keep 
at  some  place  within  the  State  of  California  an  office  and  in 
such  office  to  keep  a  complete  set  of  books  showing  all  receipts 
and  expenditures  of  such  corporation,  the  sources  of  such  re- 
ceipts, and  the  objects  of  such  expenditures,  and  also  all 
transfers  of  stock.  All  books  and  papers  must,  at  all  times 
during  business  hours,  be  open  to  the  inspection  of  any  stock- 
holder. He  is  entitled  to  be  accompanied  by  an  expert,  and 
to  make  copies  or  extracts  from  any  such  books  or  papers. 
He  ma}',  at  reasonable  hours,  examine  such  mining  property, 
accompanied  by  an  expert,  take  samples,  and  make  such  other 
examination  as  he  may  deem  necessary.  It  is  the  duty  of 
the  directors,  on  the  second  Monday  of  each  and  everv 
month,  to  cause  to  be  made  an  itemized  account  or  balance 
sheet  for  the  previous  month,  embracing  a  full  and  com- 
plete statement  of  all  disbursements  and  receipts,  showing 
from  what  sources  such  receipts  were  derived,  and  to  whom 
and  for  what  object  or  purpose  such  disbursements  or  pay- 
ments were  made;  also  all  indebtedness  or  liabilities  incurred 
or  existing  at  the  time,  and  for  what  the  same  were  incurred, 
and  the  balance  of  money,  if  any,  on  hand.  Such  account  or 
balance  sheet  must  be  verified  under  oath  by  the  president 
f.nd  secretary,  and  posted  in  some  conspicuous  place  in  the 
.office  of  the  company.     It  is  the  duty  of  the  superintendent, 


§  589  SUPPLEMENT.  72 

on  the  first  Monday  of  each  month,  to  file  with  the  secretary 
an  itemized  account,  verified  under  oatli,  showing  all  receipts 
and  disbursements  made  by  him  for  the  previous  month,  and 
for  what  said  disbursements  were  made.  Such  account  must 
also  contain  a  verified  statement  showing  the  number  of  men 
employed  under  him,  and  for  what  purpose,  and  the  rate  of 
wages  paid  to  each.  He  must  attach  to  such  account  a  full 
and  complete  report,  under  oath,  of  the  work  done  in  said 
mine,  the  amount  of  ore  extracted,  from  what  part  of  mine 
taken,  the  amount  sent  to  mill  for  reduction,  its  assay  value, 
the  amount  of  bullion  received,  the  amount  of  bullion  ship- 
ped to  the  ofiice  of  the  company  or  elsewhere,  and  the 
amount,  if  any,  retained  by  the  superintendent.  It  is  his 
duty  to  forward  to  the  office  of  the  company  a  full  report, 
under  oath,  of  all  discoveries  of  ores  or  mineral-bearing 
quartz  made  in  said  mine,  whether  by  boring,  drifting,  sink- 
ing, or  otherwise,  together  with  the  assay  value  thereof.  All 
accounts,  reports  and  correspondence  from  the  superintendent 
'must  be  kept  in  some  conspicuous  place  in  the  office  of  said 
company,  open  to  the  inspection  of  all  stockholders.  En. 
Stats.  1905,  5S5, 

588,  589,  590.  The  statute  of  1873-4,  page  866,  as  amended  in 
1880,  page  134,  and  1897,  page  38,  is  codified  in  the  above 
sections,  the  only  substantial  change  made  being  in  the 
omission  of  the  proviso  in  section  1  of  the  amendatory- 
act  of  1897,  limiting  its  provisions  to  corporations  '"vi^hose 
stock  is  listed  and  offered  for  sale  at  public  exchange." 
The  provisions  of  the  part  of  the  section  omitted  are  un- 
constitutional. (See  Johnston  v.  Tautphaus,  127  Cal.  604.) 
Code    Commissioner's    Note. 

§  589.  Right  of  stockholders  to  visit  mine  with  expert. 
Any  stockholder  of  a  corporation  formed  under  the  laws  of 
this  state  for  the  purpose  of  mining,  is  entitled  to  visit, 
accompanied  by  his  expert,  and  examine  the  mine  or  mines 
owned  by  such  corporation,  and  every  part  thereof,  at  any 
time  he  may  see  fit;  and  when  such  stockholder  applies  to 
the  president  of  such  corporation,  he  must  immediately  cause 
the  secretary  thereof  to  issue  and  deliver  to  such  applicant 
an  order,  under  the  seal  of  the  corporation,  directed  to  the 
superintendent,  commanding  him  to  show  and  exhibit  such 
parts  of  said  mine  or  jnines  as  the  party  named  in  said  or- 
der may  desire  to  visit  and  examine.  It  is  the  duty  of  the 
superintendent,  on  receiving  such  order,  to  furnish  such 
stockholder    every  facility  for  making  a  full  and  complete 


73  CIVIL  CODE.  §  590 

inspection  of  said  mine  or  mines,  and  of  the  workings  there- 
in, and  to  accompany  said  stockholder  either  in  person,  or 
to  furnish  some  person  familiar  with  said  mine  or  mines  to 
accompany  him  in  his  visit  to  and  through  such  mine  or 
mines,  and  every  part  thereof.  If  the  superintendent  fails 
to  obey  such  order,  such  stockholder  is  entitled  to  recover, 
in  any  court  of  competent  jurisdiction,  against  the  corpo- 
ration, the  sum  of  one  thousand  dollars,  and  traveling  ex- 
penses to  and  from  the  mine,  as  liquidated  damages,  together 
with  costs  of  suit.  In  case  of  such  refusal,  it  is  the  duty 
of  the  directors  of  the  corporation  forthwith  to  remove  the 
officer  so  refusing,  and  thereafter  he  must  not  be  employed 
directly  or  indirectly  by  the  corporation,  nor  must  any  salary 
be  paid  to  him.  En.  Stats.  1905,  586. 
See  note  to  §  588,  ante. 

§  590.    Liability  of  presidents  and  directors.     In  case  of 

the  refusal  or  neglect  of  the  president  to  cause  to  be  is- 
sued by  the  secretary  the  order  mentioned  in  section  five 
hundred  and  eighty-nine,  such  stockholder  is  entitled  to  re- 
cover against  said  president  the  sum  of  on?  thousand  dol- 
lars and  costs,  as  provided  in  the  last  section.  If  the  direct- 
ors fail  to  have  the  reports  and  accounts  current  made  and 
posted  as  provided  in  section  five  hundred  and  eighty-eight, 
they  are  liable,  either  severally  or  jointly,  to  an  action  by 
any  stockholder  complaining  thereof,  and  on  proof  of  such 
refusal  or  failure,  he  may  recover  judgment  for  actual  dam- 
ages sustained  by  him,  with  costs  of  suit.  Each  of  such 
defaulting  directors  is  also  liable  to  removal  for  such  neg- 
lect.    En.  Stats.  1905,  587. 

See  note  to  §  588,  ante. 
Civil  Code— 7 


§   591  SUPPLEMENT.  74 


DIVISIOX  FIRST. 

PART  I. 

TITLE  Xla. 

New  title  added   March  21,  1905.     Stats.  1905,  588. 

CORPORATIONS  FOR  THE  FORMATION  OF  CHAMBERS  OF 
COMMERCE,  BOARDS  OF  TRADE,  MECHANICS'  INSTI- 
TUTES, AND  OTHER  KINDRED  ASSOCIATIONS. 

§  591.     Formation,   organization   and   powers   of. 

§   592.     Capital  stock  and  certificates  of. 

§  592a.  Powers  which  may  be  conferred  on  the  trustees,  di- 
rectors, or  the  executive  committee. 

§  5926.  Power  to  acquire,  sell,  possess,  and  use  property. 

§  592c.  The  by-laws. 

§  592(7.  Power  to  levy  and  collect  assessments. 

§  592e.  Pre-existing  corporations  may  become  entitled  to  the 
benefit  of  this  title. 

§  591.  Formation,  organization,  and  powers  of.  Corpora- 
tions for  the  formation  and  organization  of  chambers  of 
commerce,  boards  of  trade,  mechanics'  institutes,  and  other 
associations  formed  for  the  extension  and  promotion  of  trade 
and  commerce,  or  the  advancement,  protection,  and  improve- 
ment of  the  mechanic  arts,  may  be  formed  by  twenty  or 
more  persons,  who  must  execute  and  file  articles  of  incorpora- 
tion as  prescribed  in  chapter  one  of  title  one  of  part  four 
of  this  code.  Upon  receiving  from  the  secretary  of  state  a 
certificate  of  the  filing  with  him  of  a  certified  copy  of  its 
articles  of  incorporation,  such  corporation  becomes  a  body 
corporate,  and  by  its  corporate  name  has  succession  for  the 
period  limited  in  its  articles,  and  power:  (1)  To  sue  and  be 
sued  in  any  court;  (2)  to  make  and  use  a  common  seal,  and 
alter  it  at  pleasure;  (3)  to  lease,  purchase,  hold,  sell,  mort- 
gage, convey  in  trust,  convey,  release  from  trust  or  mortgage, 


75  CIVIL  CODE.  §§  592-592b 

such  real  and  personal  property  as  hereinafter  provided;  (4) 
to  elect  and  appoint  such  officers,  agents,  and  servants  as 
the  business  of  the  corporation  may  require;  and  (5)  to 
make  by-laws,  not  inconsistent  with  the  laws  of  this  state, 
providing  for  the  organization  of  the  corporation  and  the 
management  of  its  affairs.  No  corporation  formed  under 
this  title  must  engage  in  any  mercantile,  commercial,  or  me- 
chanical business.     En.  Stats.  1905,  5SS. 

591,  592,  592a,  592b,  592c,  592d,  592e.  Adds  a  new  title  to  the 
Code,  designated  "Corporations  for  the  Formation  of  Cham- 
bers of  Commerce,  Boards  of  Trade,  Mechanics'  Institutes, 
and  other  Kindred  Organizations,''  the  matter  contained 
in  said  chapter  being  a  codification  of  the  statute  of  1865-6, 
page  469,  as  amended  iu  1867-8,  page  5,  and  1885,  page 
76,  respecting  chambers  of  commerce. — Code  Commission- 
er's   Note. 

§  592.  Capital  stock  and  certificates  of.  Every  corpora- 
tion formed  under  this  title  may  have  a  capital  stock  and 
issue  certificates  to  represent  the  shares  thereof,  if  the  ar- 
ticles of  incorporation  contain  a  statement  of  the  amount 
of  its  capital  stock  and  the  number  of  shares  into  which 
it  is  divided.  The  rights  and  privileges  to  be  accorded  to 
stockholders  are  distinct  from  those  to  be  accorded  to  mem- 
bers at  large  of  the  corporation,  and  the  obligations  to  be 
imposed  upon  stockholders  in  the  same  relation  must  be  fixed 
and  established  in  the  by-laws  of  the  corporation.  En.  Stats. 
1905,  5SS. 

See  note  to  §  591,  ante. 

§  592a.  Pcwers  which  may  be  conferred  on  the  trustees, 
directors,  or  the  executive  committee.  The  corporation  may 
confer  upon  a  board  of  trustees  or  directors,  or  upon  a  body 
to  be  styled  the  executive  committee  of  the  corporation,  the 
right  to  exercise  all  or  any  of  the  corporate  powers,  if  the 
articles  of  incorporation  state  that  the  right  to  exercise  the 
corporate  powers  is  to  be  confided  to  such  board  of  trustees 
or  directors  or  to  such  executive  committee,  and  the  number 
of  trustees,  directors,  or  committee,  and  the  names  of  those 
selected  to  take  charge  of  the  affairs  of  the  corporation  for 
the  first  six  months.     En.  Stats.  1905,  588. 

See  note  to  §  591,  ante. 

§  592&.     Power  to  acquire,  sell,  possess,  and  use  property. 

Every   coi-poration   formed   under   this   title   may   lease,   pur- 


§§    592c-592e  SUPPLEMENT  76 

chase,  have,  holrl,  nse,  take  possession  of,  ftnd  enjoy  in  feo 
simple  or  otherwise  any  personal  or  real  property  within  the 
state  necessary  for  the  uses  and  purposes  of  the  corporation, 
and  may  sell,  lease,  deed  in  trust,  alien,  or  dispose  of  the 
same  at  its  pleasure.  En.  Stats.  1905,  5S9. 
See  note  to  §  591,  ante. 

§  592c.  The  by-laws.  The  by-laws  of  any  corporation 
formed  under  this  title  without  capital  stock  must  prescribe 
how  members  of  the  corporation  shall  be  admitted  and  how 
expelled,  and  how  officers,  agents,  and  servants  shall  be  ap- 
pointed. Such  provisions  in  the  by-laws  have  force  and  ef- 
fect as  between  private  parties  and  the  corporation.  All 
corporations  formed  under  the  provisions  of  this  title  must 
determine,  by  their  by-laws,  the  manner  of  calling  and  con- 
ducting their  meetings,  the  number  of  members  that  consti- 
tute a  quorum,  the  manner  of  levying  and  collecting  assess- 
ments, the  officers  of  the  corporation,  the  manner  of  their 
election  or  appointment  and  their  tenure  of  office,  and  may 
prescribe  suitable  penalties  for  the  violation  of  such  by-laws, 
not  exceeding  in  any  case  one  hundred  dollars  for  any  one 
offense.     En.  Stats.  1905,  589. 

See  note  to  §  591,  ante. 

§  5Q2d.  Power  to  levy  and  collect  assessments.  Every 
corporation  forined  under  the  provisions  of  this  title  has 
power  to  levy  and  collect,  from  the  members  thereof,  for  the 
purpose  of  paying  the  proper  and  legal  expenses  of  the  cor- 
poration, assessments  in  such  manner  as  may  be  prescribed 
by  its  by-laws,  but  not  otherwise.     En.  Stats.  1905,  589 

See  note  to  §  591,  ante. 

§  592e.  Pre-existing  corporations  may  become  entitled  to 
the  benefit  of  this  title.  Every  corporation,  association,  or 
institution  formed  prior  to  the  enactment  of  this  title,  for 
any  of  the  purposes  contemplated  thereby,  may,  by  a  vote 
of  the  majority  of  its  members  voting  at  a  meeting  called 
for  that  purpose,  become  entitled  to  the  benefit  thereof  on 
filing  the  certificate  hereinafter  required.  Notice  of  such 
meeting  and  of  its  object  must  be  published  in  a  news- 
paper of  general  circulation  in  the  county  in  which  the 
principal  place  of  business  of  the  corporation,  association, 
or  institution  is  located,  for  at  least  two  weeks  before  the 


77  CIVIL  CODE.  §§    593-595 

(lay  on  which  the  meeting  is  to  be  held.  Such  certificate 
must  be  signed  and  acknowledged  by  at  least  five  members 
of  the  corporation,  association,  or  institution,  must  con- 
tain a  list  of  the  members  who  desire  to  become  members, 
and  must  be  filed  with  the  county  clerk  of  such  county,  and  a 
copy  thereof,  certified  by  him,  must  be  filed  with  the  secre- 
tarv  of  state.  Thereupon  such  corporation,  association,  or 
institution  possesses  all  the  powers  and  privileges  conferred 
by  this  title.  En.  Stats.  1905,  589, 
See  note  to  §  591,  ante. 

§  593.  Number  of  directors  when  formed  other  than  for 
profit.  Any  number  of  persons  associated  together  for  anj' 
purpose,  where  pecuniary  profit  is  not  their  object,  and  for 
which  individuals  may  lawfully  associate  themselves,  may, 
in  accordance  with  the  rules,  regulations,  or  discipline  of 
such  association,  elect  directors,  the  number  thereof  to  be 
not  less  than  three  nor  more  than  twenty-one,  and  may  in- 
corporate themselves  as  provided  in  this  part.  En.  March 
21,  1872.     Am'd.  1880,  G;  1905,  113. 

§  595.  Amount  of  real  estate  to  be  owned  by  certain  cor- 
porations. All  such  corporations  may  hold  all  the  property 
of  the  association  owned  prior  to  incorporation,  or  acquired 
thereafter  in  any  manner,  and  transact  all  business  relative 
thereto;  but  no  such  corporation  must  own  or  hold  more  real 
estate  than  may  be  necessary  for  the  business  and  objects 
of  the  association,  and  providing  burial  grounds  for  its  de- 
ceased members,  not  to  exceed  six  (6)  whole  lots  in  any  city 
or  town,  nor  more  than  fifty  (50)  acres  in  the  country,  the 
annual  increase,  income  or  profit,  whereof  must  not  exceed 
fifty  thousand  ($50,000)  dollars;  provided,  that  any  such  cor- 
poration now  or  hereafter  having,  and  having  had  continu- 
ously, for  the  next  preceding  three  (3)  years,  the  care,  cus- 
tody, control,  and  maintenance  each  year,  upon  an  annual 
average  of  not  less  than  one  hundred  (100)  orphans,  half 
orphans,  and  indigent  minor  children,  at  any  one  orphan  asy- 
lum, shall  be  entitled  and  allowed  to  own  and  possess  any 
number  of  acres  not  exceeding  one  hundred  and  sixty  (160) 
acres  of  land  in  the  country,  outside  of  any  incorporated  city 
or  town,  and  the  annual  income  or  profit  of  which  does  not 
exceed  fifty  thousand  ($50,000)  dollars;  and  jyroKided  further, 
that  the  limitations  herein  provided  for  shall  not   apply  to 


§   599  SUPPLEMENT.  78 

corporations  formed,  or  to  be  formed,  under  section  six  hun- 
dred and  two  (602)  of  the  Civil  Code,  when  the  land  is  held 
or  used  for  churches,  hospitals,  schools,  colleges,  orphan  asy- 
lums, parsonages,  or  cemetery  purposes  or  to  corporations 
organized  for  social  purposes  and  purposes  of  recreation  and 
not  for  profit;  and  prurided  further,  that  the  limitations  here- 
in provided  for  shall  not  apply  to  corporations  organized 
other  than  for  profit,  when  the  land  is  timber  land,  and  not 
exceeding  one  hundred  and  sixty  (160)  acres  in  extent,  and 
is  held  or  used  for  the  purposes  of  the  organizations,  in 
which  case  said  land  shall  be  subject  to  all  laws  regulating  the 
preservation  of  forests.  En.  March  21,  1872.  Am'd.  1881,  9; 
1899,  10;  1903,  136;  1905,  18. 

§  5S9.     Supp.  Cal.  Eep.  Cit.     142,  495. 


DIVISION  FIEST. 
PART  IV. 

TITLE  Xlla. 
New  title  added  March  21,  1905.     Stats.  1905,  590. 

SOCIETIES    FOR   THE   PREVENTION   OF    CRUELTY   TO    CHIL- 
DREN AND  ANIMALS. 

§  607.       Formation   of   corporations. 

§  607fl.     Power  of  to  receive  and  dispose  of  property. 

§  607&.  Complaints  for  violating  any  law  relating  to 
children  or  animals. 

§  607c,  Magistrates  and  police  ofiicers  to  aid  the  corpora- 
tion and  its  officers. 

§  607rf.     Pre-existing  corporations. 

§  607e.  Fines,  penalties,  and  forfeitures,  and  the  disposi- 
tion to  be  made  thereof. 

§  607f.  Members  and  agents  may  be  authorized  to  act  as 
police  officers. 

§  607^.  Children  who  may  be  arrested  and  brought  before 
a  court  or  magistrate  for  examination. 


79  CIVIL   CODE.  §§    607  607b 

§  607.  Formation  of  corporations.  Corporations  may  be 
formed  by  any  number  of  persons  not  less  than  five,  a  ma- 
jority of  whom  must  be  citizens  ami  residents  of  this  state, 
under  the  general  provisions  of  this  code,  for  the  purpose 
of  the  prevention  of  cruelty  to  children  or  animals,  or  both. 
En,  Stats.  1905,  590. 

607,  607a,  607b,  607c,  607d,  607e,  607f,  607g.  The  subject-matter 
of  the  above  sections  is  taken  from  the  statute  of  1873-4, 
page  499,  as  amended  in  1901,  page  285,  and  1903,  page 
69 — to  prevent  cruelty  to  animals;  the  statute  of  1875-6, 
page  830,  relating  to  the  incorporation  of  societies  for  the 
prevention  of  cruelty  to  children;  the  statute  of  1877-8, 
page  812,  for  the  protection  of  children;  and  the  statute 
of  1877-8,  page  813,  relating  to  children.  Section  1  of  the 
act  of  1875-6,  page  830,  is  codified  in  section  607.  Sub- 
division 7  of  section  2  of  the  same  act  is  codified  in  sec- 
tion 607a,  and  section  3  in  section  607b.  Section  607c  is 
a  codification  of  section  4  of  the  act  of  1875-6,  page  830, 
and  section  4  of  the  act  of  1873-4,  page  499.  Section  5 
of  the  act  of  1875-6,  page  830,  is  codified  in  section  607d; 
and  section  14  of  that  act,  as  amended  in  1903,  page  69, 
and  section  5  of  the  act  of  1877-8,  page  813,  are  consoli- 
dated and  codified  in  section  607e.  Section  5  of  the  act 
of  1873-4,  page  499,  as  amended  in  1901,  page  285,  is 
codified  in  section  607f,  and  section  3  of  the  act  of  1877-8, 
page  812,  is  codified  in  section  607g,  with  the  e.xception  of 
subdivision  5  thereof,  which  is  an  addition  thereto,  to  cover 
the  matters  referred  to  in  the  act  of  1877-8,  page  813. — 
Code  Commissioner's  Note. 

§  607«.  Power  of  to  receive  and  dispose  of  property. 
Every  such  corporation  may  take  and  hold,  by  gift,  purchase 
devise,  or  bequest,  any  property,  real  or  personal,  and  dis- 
pose of  the  same  at  its  pleasure;  but  it  must  not  hold  real 
property  the  annual  income  of  which  exceeds  fifty  thousand 
dollars.     En.  Stats.  1905,  590. 

See  note  to  §   607,  ante, 

§  607&.  Complaints  for  violating  any  law  relating  to  chil- 
dren or  animals.  Any  such  corporation,  or  any  member  or 
officer  thereof,  may  prefer  a  complaint  against  any  person 
or  persons,  before  any  court  or  magistrate  having  jurisdic- 
tion, for  the  violation  of  any  law  relating  to  or  affecting  chil- 
dren or  animals,  and  may  aid  in  the  prosecution  of  any  such 
offender  before  such  court  or  magistrate  in  any  proceeding 
taken.     En.  Stats.  1905,  590, 

See  note  to  §  607,  ante. 


§§   607c-607e  SUPPLEMENT.  80 

§  607r.  Magistrates  and  police  officers  to  aid  the  corpora- 
tion and  its  officers.  All  iiiagisti-;itcs,  constalilcs,  sheriffs,  ami 
officers  of  police  must,  as  occasion  may  require,  aid  any  such 
corporation,  its  officers,  members,  and  agents,  in  the  enforce- 
ment of  all  laws  which  are  now  or  may  be  hereafter  enacted 
relating  to  or  affecting  children  or  animals.  En.  Stats.  1905, 
590. 

See  note  to  §  607,  ante. 

§  607f/.  Pre-existing  corporations.  The  provisions  of  thig 
title  extend  to  all  corporations  heretofore  formed  and  exist- 
ing for  the  prevention  of  cruelty  to  children  or  animals,  but 
do  not  extend  or  apply  to  any  association,  society,  or  cor- 
poration which  uses  or  specifies  a  name  or  style  the  same, 
or  substantially  the  same,  as  that  of  any  previously  existing 
society  or  corporation  in  this  state  organized  for  a  like  pur- 
pose.    En.  Stats.  1905,  590. 

See  note  to  §  607,  ante. 

§  607e.  Fines,  penalties,  and  forfeitures,  and  the  disposi- 
tion to  be  made  thereof.  All  fines,  penalties,  and  forfeitures 
imposed  and  collected  in  any  county,  or  city  and  county,  of 
this  state  under  the  provisions  of  any  law  of  this  state,  now 
or  hereafter  enacted,  relating  to  or  affecting  children  or  ani- 
mals, in  every  case  where  the  prosecution  was  instituted, 
aided,  or  conducted  by  any  such  corporation  or  society  now 
or  hereafter  existing,  must,  except  where  otherwise  provided, 
inure  to  such  corporation  or  society  in  aid  of  the  purposes 
for  which  it  was  incorporated  or  organized.  In  addition  to 
said  fines,  penalties  and  forfeitures,  every  society  incor- 
porated and  organized  for  the  prevention  of  cruelty  to 
animals  may,  in  each  city,  or  city  and  county,  or  county, 
where  such  society  exists,  while  actively  engaged  in  en- 
forcing the  provisions  of  the  laws  of  this  state,  now  or  here- 
after enacted,  for  the  prevention  of  cruelty  to  animals,  or 
arresting,  or  prosecuting  offenders  thereunder,  or  prevent- 
ing cruelty  to  animals,  be  paid,  as  compensation  therefor, 
from  the  county,  or  city  and  county  general  fund  by  the 
board  of  supervisors,  a  sum  not  exceeding  one  hundred  and 
fifty  dollars  per  month,  in  the  same  manner  as  other  claims 
against  said  county,  or  city  and  county,  are  paid.  En.  Stats. 
1905,  591. 

See  note  to  §  607,  ante. 


81  CIVIL  CODE.  §§    607f,    607g 

§  607f.  Memliers  and  agents  may  be  authorized  to  act 
as  police  officers.  All  members  and  agents,  and  all  officers 
of  each  or  any  of  such  corporations  or  societies,  as  may 
by  the  trustees  thereof  be  duly  authorized  in  writing,  ap- 
proved by  a  judge  of  the  superior  court  of  the  county  in 
which  such  corporation  or  society  was  organized,  and  sworn 
in  the  same  manner  as  are  constables  or  peace  officers,  have 
power  lawfully  to  interfere  to  prevent  the  perpetration  of 
any  act  of  cruelty  upon  any  child  or  dumb  animal,  and  may 
use  such  force  as  is  necessary  to  prevent  the  same,  and  to 
that  end  may  summon  to  their  aid  any  bystander;  they 
may  make  arrests  for  the  violation  of  any  penal  law  relating 
to  or  affecting  children  or  animals  in  the  same  manner  as 
a  constable  or  other  peace  officer;  and  may  carry  the  same 
or  similar  weapons  that  such  officers  are  authorized  to  carry. 
All  such  members  and  agents  must,  when  making  such 
arrests,  exhibit  and  expose  a  suitable  badge  to  be  adopted 
by  such  corporation  or  society.  All  persons  resisting  such 
specially  appointed  officers,  when  performing  any  duty  under 
this  section,  are  guilty  of  a  misdemeanor.  En.  Stats.  1905, 
•591. 

See  note  to   §   607,  ante. 

§  607fir.  Children  who  may  be  arrested  and  brought  be- 
fore a  court  or  magistrate  for  examination.  Any  child  under 
the  age  of  sixteen  years  that  comes  within  any  of  the  fol- 
lowing descriptions  named: 

1.  Who  is  found  begging  or  receiving  or  gathering  alms 
(whether  actually  begging,  or  under  the  pretext  of  selling 
or  offering  for  sale  anything),  or  being  in  any  street,  road, 
or  public  place  for  the  purpose  of  so  begging,  gathering,  or 
receiving  alms; 

2.  Who  is  found  wandering  and  not  having  any  home  or 
settled  place  of  abode,  or  proper  guardianship^  or  visible 
means  of  subsistence; 

3.  Who  is  found  destitute,  either  being  an  orphan,  or  hav- 
ing a  vicious  parent  who  is  undergoing  penal  servitude  or 
imprisonment; 

4.  Who  frequents  the  company  of  reputed  thieves  or  pros- 
titutes, or  houses  of  prostitution  or  assignation,  or  dance 
houses,  concert  saloons,  theaters,  or  variety  halls,  or  other 
places  of  amusement  where  spirituous,  malt,  or  vinous  liquors 
are  sold,  without  parent  or  guardian; 


§§    608C16  SUPPLEMENT.  82 

5.  Who  is  engaged  or  used  for  or  in  any  business^  exhibi- 
tion, vocation,  or  purpose,  in  violation  of  any  law  of  this 
state;- 

• — Must  be  arrested  and  brought  before  a  court  or 
magistrate,  and  when,  upon  examination  before  such  court 
or  magistrate,  it  appears  that  any  such  child  has  been  en- 
gaged in  any  of  the  aforesaid  acts,  or  comes  within  any  of 
the  aforesaid  descriptions;  or  when,  upon  the  examination 
or  conviction  of  any  person  having  the  custody  of  a  child, 
of  a  criminal  assault  upon  it,  the  court  or  magistrate  before 
whom  such  examination  or  conviction  is  had  deems  it  de- 
sirable for  the  welfare  of  such  child  that  the  person  so 
examined  or  convicted  should  be  deprived  of  its  custody 
thereafter;  such  court  or  magistrate,  when  it  deems  it  ex- 
pedient for  the  welfare  of  such  child,  may  commit  such 
child  to  an  orphan  asylum,  corporation,  or  societv  for  the 
prevention  of  cruelty  to  children,  charitable  or  other  insti- 
tution, or  make  such  other  disposition  thereof  as  now  is  or 
hereafter  may  be  provided  by  law  in  cases  of  vagrant,  tru- 
ant, disorderly,  pauper,  or  destitute  children.  Any  corpo- 
ration, organized  under  this  title,  or  now  existing,  for  the 
prevention  of  cruelty  to  children,  or  any  officer  or  member 
thereof,  may  institute  proceedings  under  this  section  for  the 
•welfare  of  any  such  child.     En.  Stats.  1305,  591. 

See  note  to  §  607,  ante. 

§  608.  Supp.  Cal.  Rep.  Cit.  140,   252. 

§  609.  Supp.  Cal.  Eep.  Cit.  140,   232. 

§  610.  Supp.  Cal.  Eep.  Cit.  140,  232. 

§  611.  Supp.  Cal.  Eep.  Cit.  140,   232. 

§  612.  Supp.  Cal.  Eep.  Cit.  140,  232. 

§  613.  Supp.  Cal.  Eep.  Cit.  140,   232. 

§  614.  Supp.  Cal.  Eep.  Cit.  140,  232. 

§  615,  Supp.  Cal.  Eep.  Cit.  140,   232. 

§  616.  Supp.  Cal.  Eep.  Cit.  138,  557;   140,  232. 


83  CIVIL  CODE.  §§   628,   629 

DIVISION  FIEST. 
PART  IV. 

TITLE  XV. 

Old  title  repealed  and  new  title  substituted  March  21,  1905. 
Stats.  1905,  593. 

CORPOKATIONS  TO  FURNISH  LIGHT  FOR  PUBLIC   USE. 

§  628.     Kepealed. 

§  629.     Duty  to  furnish  gas  or  electricity. 

§  630.     When  corporations  may  refuse  to  supply  gas. 

§  630a.  When  corporations  may  refuse  to  supply  electric 

current  for  light. 
§  631.     Eight  to  enter  buildings  for  inspection. 
§  632.     Eight  to  shut  off  supply  of  gas  or  electricity. 

§  628.     En.  March  21,  1872.     Eep.  1905,  592. 

§  629.  Duty  to  furnish  gas  or  electricity.  Upon  the  ap- 
plication in  writing  of  the  owner  or  occupant  of  any  building 
or  premises  distant  not  more  than  one  hundred  feet  from  any 
main,  or  direct  or  primary  wire,  of  the  corporation,  and 
payment  by  the  applicant  of  all  money  due  from  him,  the 
corporation  must  supply  gas  or  electricity  as  required  for 
such  building  or  premises,  and  cannot  refuse  on  the  ground 
of  any  indebtedness  of  any  former  owner  or  occupant  thereof, 
unless  the  applicant  has  undertaken  to  pay  the  same.  If, 
for  the  space  of  ten  days  after  such  application,  the  corpo- 
ration refuses  or  neglects  to  supply  the  gas  or  electricity 
required,  it  must  pay  to  the  applicant  the  sum  of  fifty  dol- 
lars as  liquidated  damages,  and  five  dollars  per  day  as  liqui- 
dated damages  for  every  day  such  refusal  or  neglect  con- 
tinues thereafter.  En.  March  21,  1872.  Eep.  igOo,  593. 
En.  1905,  593. 

Supp.  Cal.  Eep.  Cit.  141,  706;  141,  710;  141,  711;  141, 
712. 


§§    630-631  SUPPLEMENT.  84 

629,  C30,  esOa,  631,  632.  The  purpose  of  the  amendment  is  to  make 
the  above  sections  applicable  to  electric  as  well  as  to  gas- 
light corporations.  To  accomplish  this,  the  following  changes 
have  been  made:  In  section  629  the  words  ''or  direct  or 
primary  wire"  are  inserted  after  "main,"  and  the  words 
"or  electricity"  are  inserted  in  two  places  after  "gas." 
Section  630a  is  a  new  section,  to  extend  the  provisions  of 
the  chapter  "Electric  Light  Companies,"  and  provide  for 
advances  similar  to  those  made  to  gas  companies  by  sub- 
scribers. In  section  631  the  words  ''any  owner  or  manager 
of  gas  or  electric  works,  or  agent  of  such  owner  or  man- 
ager, exhibiting  written  authority,  signed  by  such  owner 
or  manager,  or"  are  inserted  at  the  beginning  of  the  sec- 
tion; the  words  "or  electric  light''  are  inserted  after 
"gas";  the  words  "or  electricity"  are  inserted  after 
"gas,"  and  the  words  ''or  electric  meters"  are  inserted 
after  "meters."  In  section  632  the  words  "or  elec- 
tricity" are  added  after  "gas"  in  three  places,  and  the 
word  "wires"  is  inserted  after  "pipes." — Code  Commis- 
sioner's   Note. 

§  630.  When  corporations  may  refuse  to  supply  gas.  Xo 
corporation  is  required  to  lay  service  pipe  where  serious 
obstacles  exist  to  laying  it,  unless  the  applicant,  if  required, 
deposits  in  advance,  with  the  corporation,  a  sum  of  money 
sufficient  to  pay  the  cost  of  laying  such  service  pipe,  or 
his  proportion  thereof.  En.  March  21,  1872.  Eep,  1905,  593. 
En.  1905,  593. 

See   note   to    §    629,   ante. 

§  630(7.  When  corporations  may  refuse  to  supply  electric 
current  for  light.  No  corporation  is  required  to  construct 
lines  for  the  supply  of  electric  current  for  light  where 
serious  obstacles  exist,  nor  shall  such  corporation  be  required 
to  supply  such  current  from  a  direct  wire  at  a  distance 
too  remote  from  the  generating  station,  to  insure  a  suffi- 
cient supply;  nor  is  such  corporation  required  to  supply 
electric  current  for  light  from  a  primary  wiie  carrying  cur- 
rent of  high  voltage,  unless  the  applicant  deposit,  in  advance, 
a  sum  of  money  sufficient  to  pay  the  actual  costs  of  such 
construction  and  for  the  appliances  required  to  supply  elec- 
tric current  with  safety  at  the  proper  voltage.  En.  Stats. 
1905,   593. 

See  note  to   §   629,  ante. 

§  631.     Eight    to    enter    buildings    for    inspection.     Any 

owner,   manager   or    superintendent    of   gas   or   electric    light 
works,  or  agent  of  such  owner,  manager,  or  superintendent, 


85  CIVIL  CODE.  §§    632-638a 

exhibiting  written  authority,  signed  by  such  owner,  man- 
ager or  superintendent,  or  any  agent  of  a  gas  or  electric 
light  corporation  exhibiting  written  authority  signed  by  the 
president  or  secretary  thereof  for  such  purpose,  may  enter 
any  building  or  premises  lighted  with  gas  or  electricity  sup- 
plied by  such  owner  or  corporation,  to  insneet  the  gas  meters 
or  electric  meters  therein  to  ascertain  the  quantity  of  gas 
or  electricity  supplied  or  consumed.  Every  owner  or  occu- 
pant of  such  building  who  hinders  or  prevents  such  entry 
or  inspection  must  pay  to  the  owner  or  corporation  the  sum 
of  fifty  dollars  as  liquidated  damages.  En.  March  21,  1872. 
Eep.  1900,  593.  En.  Stats.  1905,  593. 
See  note  to  §  629,  ante. 

§  632.    Eight   to    shut   off   supply   of   gas   or   electricity. 

All  gas  or  electric  light  corporations  may  shut  off  the  supply 
of  gas  or  electricity  from  any  person  who  neglects  or  refuses 
to  pay  for  the  gas  or  electricity  svipplied,  or  the  rent  of 
any  meter,  pipes,  wires,  fittings  or  appliances,  provided  by 
the  corporation,  as  required  by  his  contract;  and  for  the  pur- 
pose of  shutting  off  the  gas  or  electricity  in  such  case  any 
employe  of  the  corporation  may  enter  the  building  or  prem- 
ises of  such  person,  between  the  hours  of  eight  o'clock 
in  the  forenoon  and  six  o'clock  in  the  afternoon,  of  an}'' 
day,  and  remove  therefrom  any  property  of  the  corporation 
used  in  supplying  gas  or  electricity.  En.  March  21,  1872. 
Eep.  1905,  593.     En.  1905,  594. 

See  note  to  §  629,  ante. 

Supp.   Cal.   Eep.   Cit.     141,   706;    141,   708. 

§  634.     Supp.   Cal.   Eep.   Cit.     143,   258. 

§  638r7.  Withdrawal  of  stock,  notice  of.  A  stockholder 
desiring  to  withdraw  from  the  association  or  to  surrender 
a  part  or  all  of  his  stock  may  do  so  by  giving  thirty  days' 
notice,  in  writing,  of  his  intention.  On  the  expiration  of 
such  notice,  he  is  entitled  to  receive  the  full  amount  paid 
in  upon  the  stock  surrendered,  together  with  such  propor- 
tion of  the  earnings  thereon  as  the  by-laws  may  provide, 
or  as  may  be  fixed  by  the  board  of  directors;  but  not  more 
than  one  half  of  the  monthly  receipts  in  any  one  month 
must  be  applied  to  withdrawals  for  that  month,  without 
the  consent  of  the  board  of  directors,  and  no  stockholder 
Civil  Code— 8 


§§   648>^-653a  SUPPLEMENT.  86 

must  be  permitted  to  withdraw  whose  stock  is  pledged  to 
the  association  as  security  for  a  loan  until  such  loan  is 
fully  paid.  Such  withdrawals  must  be  paid  in  succession 
in  the  order  that  the  notices  of  intention  are  given.  En. 
Stats.  1905,  753. 

638a.      This  section  is  a  codification   of   section   19   of  the   statute  of 
1893,   page   229. — Code   Commissioner's   Note. 

§  6481^..     En.  Stats.  1891,  257.     Kep.  1905,  753. 

648%.      This    section    is    no  longer    necessary;    the    statute    referred 

to   therein   to   wit:  that   of    1877-8,    page   955,    having   been 

repealed.      (Stats.  1897,      p.    243.)— Code      Commissioner's 
Note. 


DIVISION  FIRST. 
PART  IV. 

TITLE  XIX. 

Title  added  March  21,  1905.     Stats.  1905,  594. 

CO-OPEiRATIVE  BUSINESS  CORPORATIONS. 
§  653ff.     Purposes  for  which  may  be  formed. 

§  653a.  Purposes  for  which  may  be  formed.  Co-opera- 
tive business  corporations  may  be  formed  for  doing  any 
lawful  business,  and  dividing  a  portion  of  their  profits 
among  persons  other  than  their  stockholders.  Each  of  such 
corporations  may,  in  its  by-laws,  in  addition  to  the  mat- 
ters specified  in  section  three  hundred  and  three,  provide 
the  amount  of  profits  which  must  be  divided  among  persons 
other  than  its  stockholders,  and  the  manner  in  which  and 
the  persons  among  whom  such  division  may  be  made.  En. 
Stats.  1905,  594, 

653a.  This  section  is  a  codification  of  that  part  of  the  statute  of 
1877-8,  page  883,  defining  co-operative  corporations,  and 
the  section  is  placed  in  a  new  title  designated  ''Co-operative 
Business    Corporations."      That   part   of    the    statute    declar- 


87  CIVIL  CODE.  §    653b 

ing  that  the  by-laws  may  provide  for  the  niimber  of  votes 
to  which  each  shareholder  shall  be  entitled  is  omitted  for 
the  reason  that  it  is  special  legislation,  and  probably  un- 
constitutional within  the  decision  in  Krause  v.  Durbrow, 
127    Cal.    681.— Code    Commissioner's   Kote. 


DIVISION  FIEST. 
PART  IV. 

TITLE  XX. 

Title  added  March  21,  1905.     Stats.  1905,  595. 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS. 

§  653?).  Formation  and  purposes  of. 

§  653c.  Eights,  interests,  and  liabilities  of  members. 

§  653(Z.  The  articles  of  association. 

§  653c.  The   by-laws. 

§  Q53f.  Execution  against  the  association  or  its  members. 

§  653;/.  Purpose  of  the  association,  how  may  be  altered, 

§  653/1.  Powers  of  the  association. 

§  653i.  Consolidation  of  associations. 

§  653y.  Dissolution  and  winding  up  of  association. 

§  653A;.  Quo  warranto  to  inquire  into  the  right  of  an  as- 
sociation to  do  business. 

§  65ZI.  What  corporations  or  associations  are  not  affected 
by  this  title. 

§  653&.  Formation  and  purposes  of.  Five  or  more  per- 
sons may  form  a  co-operative  association  for  the  transaction 
of  any  lawful  business,  whether  for  profit  or  not,  or  for  the 
promotion  of  any  educational,  industrial,  benevolent,  social, 
or  political  purpose.  Such  association  must  not  have  any 
capital  stock,  but  must  issue  membership  certificates  to  each 
member.  Such  certificate  cannot  be  assigned,  so  that  the 
assignee  can,  by  its  transfer,  become  a  member  of  the  asso- 
ciation, but,  by  a  resolution  of  its  board  of  directors,  such 
certificate  may  be   transferred,   and   the   transferee   made   a 


§§    653c,   653d  SUPPLEMENT.  88 

member  in  lieu  of  the  last  former  holder.     En.  Stats.  1905, 
595. 

C53b,  653c,  653d,  653e,  653f,  653g,  653h,  653i,  653j,  653k,  6531. 
The  statute  of  1895,  page  221,  is  codified  in  the  above  sec- 
tions which  are  placed  in  a  title  designated  "Co-operative 
Business   Associations." — Code    Commissioner's    Note. 

§  C53r.     Rights,  interests,  and  liabilities  of  members.     In 

such  association  the  rights  and  interests  of  all  nieniliers  are 
equal,  and  no  member  can  have  or  acquire  a  greater  interest 
therein  than  any  other  member  has.  At  every  election  held 
pursuant  to  the  by-laws  each  member  must  be  entitled  to 
cast  one  vote  and  no  more.  All  persons  above  the  age  of 
eighteen  years,  regardless  of  sex,  are  eligible  to  member- 
ship, if  otherwise  qualified  and  elected  as  the  by-laws  may 
provide.  The  by-laws  must  provide  for  the  amount  of  the 
indebtedness  which  such  association  may  incur.  And  no 
member  shall  be  responsible  individually,  or  personally  liable, 
for  any  of  the  debts  or  liabilities  of  the  association  in  excess 
of  his  proportion  of  such  indebtedness;  but  in  case  of  the 
failure  and  insolvency  of  such  association,  may  be  required 
to  pay  any  unpaid  dues  or  installments  which  have,  before 
such  insolvency,  become  due  from  such  member  to  the  asso- 
ciation, pursuant  to  its  by-laws.  En.  Stats.  1905,  595. 
See  note  to  §  653&,  ante. 

§  653fZ.  The  articles  of  association.  Every  association 
formed  iinder  this  title  must  prepare  articles  of  association, 
in  writing,  stating:  The  name  of  the  association,  the  purpose 
for  which  it  is  formed,  the  place  where  its  principal  busi- 
ness is  to  be  transacted,  the  term  for  which  it  is  to  exist, 
not  to  exceed  fifty  years,  the  number  of  the  directors  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year,  the  amount  which  each  member  is  to  pay  upon  admis- 
sion as  membership  fee,  and  that  each  member  signing  the 
articles  has  actually  paid  in  such  sum,  and  that  the  interest 
and  right  of  each  member  therein  is  to  be  equal.  Such  arti- 
cles of  association  must  be  subscribed  by  the  original  asso- 
ciates or  members,  and  acknowledged  by  each  before  some 
person  competent  to  take  an  acknowledgment  of  a  deed  in 
this  state.  Such  articles  so  subscribed  and  acknowledged 
must  be  filed  in  the  office  of  the  clerk  of  the  county  wherein 
the  principal  business  of  the  association  is  to  be  transacted, 
and  a  copy  thereof  certified  by  such  clerk,  with  the  secretary 


80  CIVIL   CODE.  §   653e 

of    state,    who    must    thereupon    issue    his    certifioate    in    the 
form,  and  havingf  the  effect  prescribed  in  section  two  hun- 
dred and  ninety-six.     En.  Stats.  1905,  595. 
■See   note   to    §    6531),   ante. 

§  653r.  The  by-laws.  Every  association  formed  under  this 
title  must,  within  forty  days  after  it  so  becomes  an  associa- 
tion, adopt  a  code  of  by-laws  for  the  government  and  man- 
agement of  the  association,  not  inconsistent  with  this  title. 
A  ma.jorit_y  of  all  the  associates  is  necessary  to  the  adoption 
of  such  by-laws,  and  the  same  must  be  written  in  a  book, 
and  subscribed  by  the  members  adopting  the  same,  and  the 
same  cannot  be  amended  or  modified  except  by  the  vote  of 
a  majority  of  all  the  members,  after  notice  of  the  proposed 
amendment,  given  as  the  by-laws  may  provide.  Such  asso- 
ciation may,  by  its  by-laws,  provide  for  the  time,  place,  and 
manner  of  calling  and  conducting  its  meetings;  the  number 
of  directors,  the  time  of  their  election,  their  term  of  office, 
the  mode  and  manner  of  their  removal,  the  mode  and  man- 
ner of  filling  vacancies  in  the  board  caused  by  death,  res- 
ignation, removal,  or  otherwise,  and  the  power  and  authority 
of  such  directors,  and  how  many  thereof  are  necessary  to 
the  exercise  of  the  powers  of  such  directors,  which  must  be- 
at least  a  majority;  the  compensation  of  any  of  the  directors, 
or  of  any  officer;  the  number  of  the  officers,  if  any,  other 
than  the  directors,  and  their  term  of  office;  the  mode  of  re- 
moval, and  the  method  of  filling  a  vacancy;  the  mode  and 
manner  of  conducting  business;  the  mode  and  manner  of 
conducting  elections,  and  may  provide  for  voting  by  ballots 
forwarded  by  mail  or  otherwise,  providrd,  the  method  secures 
the  secrecy  of  the  ballot;  the  mode  and  manner  of  succession 
of  membership,  and  the  qualifications  for  membership,  and 
on  what  conditions,  and  when  membership  must  cease,  and 
the  mode  and  manner  of  expulsion  of  a  member,  subject  to 
the  right  of  an  expelled  member  to  have  the  board  of  direct- 
ors appraise  his  interest  in  the  association  in  either  money, 
property,  or  labor,  as  the  directors  may  deem  best,  and  to 
have  the  money,  property,  or  labor  so  awarded  him  paid,  or 
delivered,  or  performed  within  forty  days  after  expulsion; 
the  amount  of  membership  fee,  and  the  dues,  installments, 
or  labor  which  each  member  must  be  required  to  pay  or  per- 
form, if  any,  and  the  manner  of  collection  or  enforcement, 
and  for  fjirfeiting  or  selling  of  membership  interest  for  non- 
payment or  nonperformance;  the  method,  time,  and  manner 


§§    G53f,   G53g  SUPPLEMENT.  90 

of  permitting  the  withdrawal  of  a  member,  if  at  all,  and  how 
his  interest  must  be  ascertained,  either  in  money  or  property, 
and  within  what  time  the  same  must  be  paid  or  delivered  to 
such  member;  the  mode  and  manner  of  ascertaining  the  in- 
terest of  a  member  at  his  death,  if  his  legal  representatives 
or  none  of  them  desire  to  succeed  to  the  membership,  and 
whether  the  same  must  be  paid  to  his  legal  representatives 
in  money,  or  property,  or  labor,  and  within  what  time  the 
same  must  be  paid,  or  delivered,  or  performed;  such  other 
things  as  may  be  proper  to  carry  out  the  purpose  for  which 
the  association  was  formed.  The  by-laws  must  provide  for 
the  time  and  manner  in  which  profits  must  be  divided  among 
the  members,  and  what  proportion  of  the  profits,  if  any, 
must  be  added  to  the  common  property  or  funds  of  the  asso- 
ciation. But  the  by-laws  may  provide  that  the  directors 
may  suspend  or  pass  the  payment  of  any  such  profit,  or  in- 
stallment of  earnings,  at  their  discretion.  The  by-laws  and 
all  amendments  must  be  recorded  in  a  book  and  kept  in  the 
office  of  the  association,  and  a  copy,  certified  by  the  direct- 
ors, must  be  filed  in  the  office  of  the  county  clerk  where  the 
principal  business  is  transacted.  En.  Stats.  1905,  596. 
See  note  to   §   653&,  ante. 

§  653f.     Execution  against  the  association  or  its  members. 

The  property  of  such  association  is  subject  to  attachment 
and  execution  for  its  lawful  debts.  The  interest  of  a  mem- 
ber in  such  association,  if  sold  upon  execution,  or  any  judicial 
or  governmental  order  whatever,  cannot  authorize  the  pur- 
chaser to  have  any  right,  except  to  succeed,  as  a  member  in 
the  association,  with  the  consent  of  the  directors,  to  the 
rights  of  the  member  whose  interest  is  thus  sold.  If  the 
directors  choose  to  pay  or  settle  the  matter  after  such  sale, 
they  may  either  cancel  the  membership,  and  add  the  interest 
thus  sold  to  the  assets  or  common  property  of  the  associa- 
tion, or  reissue  the  share  or  right  to  a  new  member  upon 
proper  payment  therefor,  as  the  directors  may  determine. 
En.  Stats.' 1905,  597. 

See   note  to   §    653&,   ante. 

§  653fir.    Purpose  of  the  association,  how  may  be  altered. 

The  purpose  of  the  business  may  be  altered,  changed,  modi- 
fied, enlarged,  or  diminished  by  a  vote  of  two  thirds  of  all 
the  members,  at  a  special  election  to  be  called  for  such  pur- 


91  CIVIL  CODE.  §§    653h,   653i 

pose,  of  which  notice  must  be  given  the  same  as  the  by-laws 
provide  for  the  election  of  directors.     En.  Stats.  1905,  597. 
See  note  to   §   6536,   ante. 

§  6537(.  Powers  of  the  association.  Every  association 
formed  under  this  title  has  power  of  succession  by  its  asso- 
ciate name  for  fifty  years;  in  such  name  to  sue  and  be  sued 
in  any  court;  to  make  and  use  a  common  seal,  and  alter  the 
same  at  pleasure;  to  receive  by  gift,  devise,  or  purchase, 
hold,  and  convey  real  and  personal  property,  as  the  purposes 
of  the  association  may  require;  to  appoint  such  subordinate 
agents  or  officers  as  the  business  may  require;  to  admit  asso- 
ciates or  members,  and  to  sell  or  forfeit  their  interest  in  the 
association  for  default  of  installments,  or  dues,  or  work,  or 
labor  required,  as  provided  by  the  by-laws;  to  enter  into  any 
and  all  lawful  contracts  or  obligations  essential  to  the  trans- 
action of  its  affairs,  for  the  purpose  for  which  it  was  formed, 
and  to  borrow  money,  and  issue  all  such  notes,  bills,  or  evi- 
dences of  indebtedness  or  mortgage  as  its  by-laws  may  pro- 
vide for;  to  trade,  barter,  buy,  sell,  exchange,  and  to  do  all 
other  things  proper  to  be  done  for  the  purpose  of  carrying 
into  effect  the  objects  for  which  the  association  is  formed. 
En.  Stats.  1905,  597. 

See   note  to    §    6536,   ante. 

§  653i.  Consolidation  of  associations.  Two  or  more  asso- 
ciations formed  and  existing  under  this  title,  or  under  any 
pre-existing  law  authorizing  their  formation  for  the  same 
purposes,  may  be  consolidated,  upon  such  terms,  and  for  such 
purposes,  and  by  such  name,  as  may  be  agreed  upon,  in  writ- 
ing, signed  by  two-thirds  of  the  members  of  each  such  asso-* 
elation.  Such  agreement  must  also  state  all  the  matters 
necessary  to  articles  of  association,  and  must  be  acknowl- 
edged by  the  signers  before  an  officer  competent  to  take  an 
acknowledgment  of  deeds  in  this  state,  and  be  filed  in  the 
office  of  the  county  clerk  of  the  county  wherein  the  principal 
business  of  the  association  is  to  be  transacted,  and  a  certified 
copy  thereof  in  the  office  of  the  secretary  of  state,  and  pay 
the  same  fees  for  filing  and  recording  as  required  by  this 
code  for  the  filing  and  recording  of  the  certified  copy  of  the 
original  articles  of  association;  and  from  and  after  the  filing 
of  such  certified  copy,  the  former  associations  comprising 
the  component  parts  cease  to  exist,  and  the  consolidated  as- 
sociation succeeds  to  all  the  rights,  duties,  and  powers  of  the 


§§    653j,   653k  SUPPLEMENT, 


92 


component  associations,  and  is  possessed  of  all  the  rights 
duties,  and  powers  prescribed  in  the  agreement  of  consoli- 
dated association  not  inconsistent  with  this  title,  and  is  sub- 
ject to  all  the  liabilities  and  obligations  of  the  former  com- 
ponent associations,  and  succeeds  to  all  the  property  and 
interests  thereof,  and  may  make  bj'-laws  and  do  all  things 
permitted  by  this  title.  En.  Stats."^  1905,  598. 
See  note  to  §  6536,  ante. 

§  653/.     Dissolution  and  winding  up  of  association.     Any 

association  formed  or  consolidated  under  this  title  may  be 
dissolved  and  its  affairs  wound  up  voluntarily  by  the  written 
request  of  two  thirds  of  the  members.  Such  request  must 
be  addressed  to  the  directors,  and  must  specify  reasons  why 
the  winding  up  of  the  affairs  of  the  association  is  deemed 
advisable,  and  must  name  three  persons  who  are  members  to 
act  in  liquidation  and  in  winding  up  the  affairs  of  the  asso- 
ciation, a  majority  of  whom  must  thereupon  have  full  power 
to  do  all  things  necessary  to  liquidation;  and  upon  the  filing 
of  such  request  with  the  directors,  and  a  copy  thereof  in 
the  office  of  the  county  clerk  of  the  county  where  the  prin- 
cipal business  is  transacted,  all  power  of  the  directors  ceases 
and  the  persons  appointed  must  proceed  to  wind  up  the  asso- 
ciation, and  realize  upon  its  assets,  and  pay  its  debts,  and 
divide  the  residue  of  its  money  among  the  members,  share 
and  share  alike,  within  a  time  to  be  named  in  said  written 
request,  or  such  further  time  as  may  be  granted  them  by 
two  thirds  of  the  members,  in  writing,  filed  in  the  office  of 
said  county  clerk;  and  upon  the  completion  of  such  liquida- 
tion the  said  association  must  be  deemed  dissolved.  No  re- 
ceiver of  any  such  association,  or  of  any  property  thereof, 
or  of  any  right  therein,  can  be  appointed  by  any  court,  upon 
the  application  of  any  member,  save  after  judgment  of  dis- 
solution for  usurping  franchises  at  the  suit  of  the  State  of 
California  by  its  attorney-general.  En.  Stats.  1905,  598. 
See  note  to  §  653&,  ante. 

§  653A-.  Quo  warranto  to  inquire  into  the  right  of  an  as- 
sociation to  do  business.  The  right  of  an}'  association  claim- 
ing to  be  organized  under  this  title  to  do  business  may  be  in- 
quired into  by  quo  warranto,  at  the  suit  of  the  attorney-gen- 
eral of  this  state,  but  not  otherwise.     En.  Stats.   1905,  599. 

See  note  to  §  653&,  ante. 


93  CIVIL   CODE.  §§    6531-733 

§  6531.  What  corporations  or  associations  are  not  affected 
by  this  title.  This  title  is  not  applicable  to  railroads,  tele- 
graph, telephone,  banking,  insnrance,  building  and  loan,  or 
any  other  corporation,  unless  the  special  provisions  of  this 
code,  applicable  thereto,  are  complied  with.  En.  Stats.  1905, 
599. 

See  note  to  §  6531),  ante. 

§  657.  Supp.  Cal.  Eep.  Cit.  142,  539. 

§  658.  Supp.  Cal.  Eep.  Cit.  140,  187;   142,  539,  144,  454. 

§  659.  Supp.  Cal.  Eep.  Cit.  140,  187;  142,  539. 

§  660.  Supp.  Cal.  Eep.  Cit.  139,  167;  140,  187;  142,  539. 

§  661.  Supp.  Cal.  Eep.  Cit.  142,  539. 

§  662.  Supp.  Cal.  Eep.  Cit.  140,  187;  142,  539. 

§  663.  Supp.  Cal.  Eep.  Cit.  142,  539. 

§  670.  Supp.  Cal.  Eep.  Cit.  Subd.  1—145,  605. 

§  672.  Supp.  Cal.  Eep.  Cit.  143,  140;  143,  197;   143,  198. 

§  683.  Supp.  Cal.  Eep.  Cit.  141,  435. 

§  685.  Supp.  Cal.  Eep.  Cit.  141,  435. 

§  686.  Supp.  Cal.  Eep.  Cit.  141,  435. 

§  700.  Supp.  Cal.  Eep.  Cit.  141,  370. 

§  711.  Supp.  Cal.  Eep.  Cit.  141,  667. 

§  715.  Supp.  Cal.  Eep.  Cit.  144,  125;  144,  127. 

§  717.  Supp.  Cal.  Eep.  Cit.  141,  330. 

§  718.  Supp.  Cal.  Eep.  Cit.  141,  667. 

I  723.  Supp.  Cal.  Eep.  Cit.  144,  127. 

§  733.  Supp.  Cal.  Eep.  Cit.  139,  689. 


§§   761-842  SUrPLEMENT.  94- 

§  761.     Supp.  Cal.  Eep.  Cit.     142,  533. 

§  765.     Supp.   Cal.   Ilep.   Cit.     142,   53S;   142,  539. 

§  789.     Supp.  Cal.  Eep.  Cit.     140,  167. 

§  790.     Supp.  Cal.  Kep.  Cit.     140,  167. 

§  793.  Possession  of  real  property,  action  for,  without  no- 
tice. An  action  for  the  possession  of  real  property  leased 
or  granted,  with  a  right  of  re-entry,  may  be  maintained  at 
any  time,  after  the  right  to  re-enter  has  accrued,  without 
the  notice  prescribed  in  section  seven  hundred  and  ninety- 
one.     En.  March  21,  1872.     Am'd.  1905,  599. 

793.      The    words    "in    the    district    court,"    where    they   occur    in    the 
present   section,    are   omitted. — Code   Commissioner's   Note. 

§  822.    Assignee   of    lessee,   remedies   of    lessor    against. 

Whatever  remedies  the  lessor  of  any  real  property  has 
against  his  immediate  lessee  for  the  breach  of  any  agreement 
in  the  lease,  or  for  recovery  of  the  possession,  he  has  against 
the  assignees  of  the  lessee,  for  any  cause  of  action  accruing 
while  they  are  such  assignees,  except  where  the  assignment 
is  made  by  way  of  security  for  a  loan,  and  is  not  accom- 
panied by  possession  of  the  premises.  En.  March  21,  1872. 
Am'd.   1873-4,   219;    1905,   599. 

822.     A  clerical   error  is   corrected  by  in.serting   "has"   after   "prop- 
erty."— Code    Commissioner's   Note. 

Supp.  Cal.  Eep.  Cit.     144,  160. 

§  842.  Obligations  of  owners  of  ditch,  flume,  etc.;  liabil- 
ity of  one  to  the  other.  When  two  or  more  persons  are  as- 
sociated by  agreement  in  the  use  of  a  ditch,  flume,  pipe- 
line or  other  conduit  for  the  conveyance  of  water,  or  who 
are  using  such  ditch,  flume,  pipe-line  or  other  conduit,  or 
any  part  thereof,  for  the  irrigation  of  land  or  for  any  other 
lawful  purpose,  to  the  construction  of  which  they  or  their 
grantors  have  contributed,  he  is  liable  to  the  others  for 
the  reasonable  expenses  of  maintaining  and  repairing  the 
same,  and  of  distributing  such  water  in  proportion  to  the 
share  to  which  he  is  entitled  in  the  use  of  the  water.  En^ 
Stats.  1905,  600. 


95  CIVIL  CODE.  §§    843-970 

«42,  843.  The  statute  of  1889,  page  202,  relating  to  the  protection 
of  owners  of  ditches  and  flumes,  is  codified  in  the  above 
sections.  Section  3  of  the  statute  is  not  codified  for  the 
reason  that  any  matter  in  it  which  should  be  retained  is 
fully  covered  by  the  general  rules  of  law. — Code  Commis- 
sioner's   Note. 

§  843.  Neglect  to  pay  proportion  of  expense,  liable  there- 
for in  an  action.  If  any  one  of  them  neglects,  after  de- 
mand in  writing,  to  pay  his  proportion  of  such  expenses,  he 
is  liable  therefor  in  an  action  for  contribution,  and  in  any 
judgment  obtained  against  him  interest  from  the  time  of 
such  demand  must  be  included.  The  action  authorized  by 
this  section  must  be  brought  by  any  or  all  of  the  parties 
who  have  contributed  more  than  his  or  their  just  proportion 
of  such  expenses,  and  may  be  joint  or  several,  and  therein 
plaintiff  may  recover  as  costs,  reasonable  counsel  fees,  to 
be  fixed  by  "the  court.     En.  Stats.  1905,  600. 

See  note  to  §  842,  ante. 

§  847.  Supp.  Cal.  Eep.  Cit.  140,  51. 

§  853.  Supp.  Cal.  Eep.   Cit.  142,  69;   144,  334;   144,  53S. 

§  857.  Supp.  Cal.  Eep.  Cit.  140,  52. 

§  859.  Supp.  Cal.  Eep.  Cit.  139,  641. 

I  863.  Supp.  Cal.  Eep.  Cit.  143,  271. 

I  866.  Supp.  Cal.  Eep.  Cit.  142,  16. 

§  867.  Supp.  Cal.  Eep.  Cit.  142,  17. 

§  870.  Supp.   Cal.   Eep.   Cit.     139,  594;   145,   164. 

%  871.  Supp.  Cal.  Eep.  Cit.  145,  163. 

§  953.  Supp.  Cal.  Eep.  Cit.  143,  5o-4;   144,  633. 

§  954.  Supp.   Cal.  Eep.   Cit.     144,   260;    144,  633. 

§  970.  Rules  of  navigation.  In  the  case  of  ships  meet- 
ing, the  following  rules  must  be  observed,  in  addition  to 
those  prescribed  by  that  part  of  the  Political  Code  which 
relates  to  navigation: 


§   970  SUPPLEMENT.  95 

1.  Rules  as  to  ships  meeting  each  other.  Whonovor  any 
ship,  whether  a  steamer  or  sailing  sliip,  procoedinfr  in  one 
direction,  meets  another  ship,  whether  a  steamer  or  sailing 
ship,  proceeding  in  another  direction,  so  that  if  botli  ships 
were  to  continue  their  respective  courses  they  would  pass 
so  near  as  to  involve  the  risk  of  a  collision,  the  holms  of 
both  ships  must  be  put  to  port  so  as  to  pass  on  the  port 
side  of  each  other;  and  this  rule  applies  to  all  steamers  and 
all  sailing  ships,  whether  on  the  port  or  starboard  tack,  and 
whether  close-hauled  or  not,  except  where  the  circumstances- 
of  the  case  are  such  as  to  render  a  departure  from  the 
rule  necessary  in  order  to  avoid  immediate  danger,  and  sub- 
ject also  to  a  due  regard  to  the  dangers  of  navigation,  and,, 
as  regards  sailing  ships  on  the  starboard  tack  close-hauled, 
to  the  keeping  such  ships  under  command; 

2.  Rules  as  to  sailing  vessels.  In  the  case  of  sailing  ves- 
sels, those  having  the  wind  fair  must  give  way  to  those 
on  a  wind.  When  both  are  going  by  the  wind,  the  vessel 
on  the  starboard  tack  must  keep  her  wind  and  the  one  on 
the  larboard  tack  bear  up  strongly,  passing  each  other  on 
the  larboard  hand.  When  both  vessels  have  the  wind  lai'go 
or  abeam,  and  meet,  they  must  pass  each  other  in  the  same 
way  on  the  larboard  hand,  to  effect  which  two  last-mentioned 
objects  the  helm  must  be  put  to  port.  Steam  vessels  must 
be  regarded  as  vessels  navigating  with  a  fair  wind,  and 
should  give  way  to  sailing  vessels  on  a  wind  of  either  tack; 

3.  Rules  for  steamers  in  narrow  channels.  A  steamer 
navigating  a  narrow  channel  must,  whenever  it  is  safe  and 
practicable  keep  to  that  side  of  the  fairway  or  midchannel 
which  lies  on  the  starboard  side  of  the  steamer; 

4.  Same.  A  steamer  when  passing  another  steamer  in  such 
channel,  must  always  leave  the  other  upon  the  larboard  side; 

5.  Rules  for  steam  vessels  on  different  courses.  When 
steamers  must  inevitably  or  necessarily  cross  so  near  that 
by  continuing  their  respective  courses^  there  would  be  a  risk 
of  collision,  each  vessel  must  put  her  helm  to  port,  so  as 
always  to  pass  on   the  larboard  side  of  each  other; 

6.  Meeting  of  steamers.  The  rules  of  this  section  do  not 
apply  to  any  case  for  which  a  different  rule  is  provided  by 
the  regulations  for  the  government  of  pilots  of  steamers  ap- 
proaching each  other  within  the  sound  of  the  steam-whistle, 
or  by  the  regulations  concerning  lights  upon  steamers,  pre- 
scribed by  or  under  authority  of  the  laws  of  the  United 
States.     En.    March   21,   1872.     Am'd.   190o,   600. 


97  CIVIL  CODE.  §§   992-1096 

970.  The  amendrnent  consists  in  the  substitution  of  the  words  "b.v 
or  under  authority  of  the  laws  of  the  United  States"  after 
"steamers,''  in  place  of  the  words  "under  authority  of  the 
acts  of  congress,  aijproved  August  thirteenth,  eighteen  hun- 
dred and  fifty-two  and  April  twenty-ninth,  eighteen  hun- 
dred   and   sixty-four." — Code    Commissioner's   Note. 

§  992.     Snpp.   Cal.   Eep.   Cit.     145,   388, 

§  993.  Good  will  and  name,  transfer  of.  The  good  will 
of  a  business  is  property,  transferable  like  any  other,  and 
the  person  transferring  it  may  transfer  with  it  the  right 
of  using  the  name  under  whieh  the  business  is  conducted. 
En.  March  21,  1872.     Am'd.  1905,  602. 

993.  The  change  consists  in  the  addition  of  the  words  "and  the 
person  transferring  it  may  transfer  with  it  the  right  of 
using  the  name  under  which  the  business  is  conducted." 
The  purpose  of  the  amendment  is  to  authorize  the  transfer 
of  the  right  of  using  the  name  with  the  transfer  of  the 
good-will  of  the  business. — Code   Commissioner's  Note. 

§  1007.     Supp.  Cal.  Eep.  Cit.     139,  525;  140,  3S8;  141,  501; 
144,   27;    144,  344;   144,  594. 

§  1039.  Supp.   Cal.   Eep.   Cit.     145,   434. 

§  1040.  Supp.  Cal.  Eep.  Cit.     143,  533;  145,  434. 

§  1044.  Supp.  Cal.  Eep.  Cit.     145,  434. 

§  1045.  Supp.  Cal.  Eep.  Cit.     141,  370. 

§  1052.  Supp.  Cal.  Eep.  Cit.     144,  691. 

§  1053.  Supp.   Cal.   Eep.   Cit.     143,   536;    143,  649. 

§  1054.  Supp.  Cal.  Eep.  Cit.     143,  536. 

§  1069.  Supp.  Cal.  Eep.  Cit.     144,  37. 

§  1083,  Supp.  Cal.  Eep.  Cit.     143,  536;  li5,  424. 

§  1084.  Supp.  Cal.  Eep.  Cit.     145,  424, 

§  1096.     Conveyance  of  real  estate  ■when  name  of  person 
has  been   changed.     Any   person  in   whom   the   title   of   real 
Civil  Code— 9 


§§   1106-1163  SUPPLEMENT.  98 

estate  is  vestocl,  wlio  shall  afterwards,  from  any  cause,  have 
his  or  her  name  changed,  must,  in  any  conveyance  of  said 
real  estate  so  held,  set  forth  the  name  in  which  he  or  she 
derived  title  to  said  real  estate.     En.  Stats.  1905,  602. 

1096.  Section  1  of  the  statute  of  1873-4,  page  345,  relating  to  cnn- 
vcynnces  of  real  estate,  is  codified  in  the  above  section. 
The  rest  of  tlie  statute  should  be  added  to  section  423C  of 
the    Political    Code. — Code    Commissioner's   Note. 

§  1106.  Supp.  Cal.  Eep.  Cit.  141,  371. 

§  1113.  Supp.  Cal.  Eep.  Cit.  138,  624. 

§  1140.  Supp.  Cal.  Eep.  Cit.  145,  523. 

§  1146.  Supp.  Cal.  Eep.  Cit.  143,  536;  144,  294;  144,  296. 

§  1147.  Supp.  Cal.  Eep.  Cit.  143,  534;  144,  296. 

§  1161.  Acknowledgment  of  instrument  tc  lie  recorded, 
by  a  person;  by  a  corporation.  Before  an  instrument  can 
be  recorded,  unless  it  belongs  to  the  class  provided  for  in 
either  section  eleven  hundred  and  fifty-nine,  eleven  hundred 
and  sixty,  twelve  hundred  and  two,  or  twelve  hundred  and 
three,  its  execution  must  be  acknowledged  by  the  person  exe- 
cuting it,  or  if  executed  by  a  corporation,  by  its  president 
or  secretary,  or  other  person  executing  the  same  on  behalf 
of  the  corporation,  or  proved  by  a  subscribing  witness,  or 
as  provided  in  sections  eleven  hundred  and  ninety-eight  and 
eleven  hundred  and  ninety-nine,  and  the  acknowledgment 
or  proof  certified  in  the  manner  prescribed  by  article  three 
of  this  chapter.  En.  March  21,  1872.  Am'd.  1873-4,  226; 
1905,  602. 

1161.  The  change  consists  in  the  substitution  of  the  words  "the 
person  executing  the  same  in  behalf  of  the  corporation"  in 
place  of  "its  president  or  secretary."  The  reason  for  the 
amendment  is  that  an  instrument  may  be  executed  on  behalf 
of  a  corporation  by  an  officer  or  person  other  than  its  presi- 
dent or  secretary,  when  authorized  by  its  board  of  directors. 
The  section  as  it  now  stands  appears  to  sanction  its  exe- 
cution by  those  officers  only. — Code   Commissioner's  Note. 

§  1163.  Certificate  of  residence  filed  with  recorder,  show- 
ing where  service  of  summons  may  be  made;    fee;    index. 

Any  person,  firm,  or  corporation,  may  record  in  the  ofiice 
of  the  county  recorder  of  any  county  in  the  State  of  Call- 


99  CIVIL  CODE.  §§    1181-1185 

fornia  a  certificate  setting  forth  the  name  of  said  person, 
firm,  or  corporation,  and  the  place  of  residence  of  said  per- 
son, firm,  or  corporation,  and  the  place  where  service  of 
summons  may  be  made  upon  said  person,  firm,  or  corpora- 
tion. The  said  certificate  must  be  verified  by  the  oath  of 
the  person,  or  of  a  member  of  the  firm,  or  officer  of  the 
corporation  making  the  same,  and  may  be  recorded  without 
acknowledgment.  Such  person,  firm  or  corporation  may  upon 
a  change  of  place  of  residence  file  affidavit  as  herein  pro- 
vided and  such  last  affidavit  filed  shall  be  the  place  desig- 
nated as  the  place  where  service  of  summoas  may  be  made 
as  herein  provided.  The  fee  of  the  recorder  for  recording 
said  certificate  shall  be  fifty  cents;  and  the  recorder  shall 
keej)  in  his  office  an  index  entitled  "Index  to  Certificates 
of  Eesidence, "  in  which  must  be  entered  the  name  of  the 
person,  firm,  or  corporation  in  whose  behalf  said  certificate 
was  filed.  En.  March  21,  1872,  Eep.  1873-4,  226.  En. 
Stats.    1905,   139. 

§  1181.  Proof  or  acknowledgment  in  this  state,  before 
whom  taken.  The  proof  or  acknowledgment  of  an  instru- 
ment may  be  made  in  this  state,  within  the  city,  county,  city 
and  county,  or  township  for  which  the  officer  was  elected  or 
appointed,  before  either: 

1.  A  clerk  of  a  court  of  record; 

2.  A  county  recorder; 

3.  A  court  commissioner; 

4.  A  notary  public; 

5.  A  justice  of  the  peace.  En.  March  21,  1872.  Am'd. 
1880,  2;   1891,  214;   1905,  603. 

1181.      The   change   consists   in   the   substitution   of  the  word    "town- 
ship"   for    "district"    before    "for."— Code    Commissioner's 

Note. 

§  1185.  Requisites  for  acknowledgments.  The  acknowl- 
edgment of  an  instrument  must  not  be  taken,  unless  the  of- 
ficer taking  it  knows  or  has  satisfactory  evidence,  on  the 
oath  or  affirmation  of  a  credible  witness,  that  the  person 
making  such  acknowledgment  is  the  individual  who  is  de- 
scribed in  and  who  executed  the  instrument;  or,  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledg- 
ment is  the  president  or  secretary  of  such  corporation,  or 
other  person  who  executed  it  on  its  behalf.  En.  March  21 
1872.     Am'd.  1905,  603.  ' 


§§    1190  1203  SUPPLEMENT.  100 

1185.  The  change  consists  in  the  substitutir/n  of  the  words  "per- 
son who  executed  it  on  behalf  of  the  corporation,"  in  place 
of  ''president  or  secretary  of  sucli  corporation.''  (See 
note    to    section    1161.) — Code    Commissioner's    Note. 

§  1190.     Form  of    acknowledgment    by    corporation.     The 

certificate  of  acknowledgment  of  an  instrument  exeeutetl  by  a 
corporation  must  be  substantially  in  the  following  form: 

' '  State  of , 


County  of  

"On  this day  of  ,  in  the  year ,  before 

me  (here  insert  the  name  and  quality  of  the  officer),  person- 
ally appeared  ,  known  to  me  (or  proved  to  me  on  the 

oath  of )  to  be  the  president  (or  the  secretary)  of  the 

corporation  that  executed  the  within  instrument  (where, 
however,  the  instrument  is  executed  in  behalf  of  the  corpora- 
tion by  some  one  other  than  the  president  or  secretary,  in- 
sert: known  to  me  (or  proved  to  me  on  the  oath  of  ) 

to  be  the  person  who  executed  the  within  instrument  on  be- 
half of  the  corporation  therein  named)  and  acknowledged  to 
me  that  svtch  corporation  executed  the  same.  En.  March  21, 
1872.     Am'd.  1905,  603. 

1190.  The  change  consists  in  the  substitution  of  the  words  "the 
person  (or  officer)  who  executed  the  within  instrument  on 
behalf  of  the  corporation  therein  named,"  iu  place  of  the 
words  "the  president  (or  the  secretary)  of  the  corpora- 
tion that  executed  the  within  instrument."  (See  note  to 
section    1161.)— Code    Commissioner's    Note. 

§  1202.  Instrument  improperly  certified,  ho'w  corrected. 
"When  the  acknowledgment  or  proof  of  the  execution  of  au 
instrument  is  properly  made,  but  defectively  certified,  any 
party  interested  may  have  an  action  in  the  superior  court 
to  obtain  a  judgment  correcting  the  certificate.  En.  March 
21,   1872.     Am'd.  1905,  604. 

1202.  The  change  consists  in  the  substitution  of  the  word  "supe- 
rior" for  "district,"  before  "court." — Code  Commission- 
er's  Note. 

§  1203.  Judgment  proving  ackno'wledgment.  Any  person 
interested  under  an  instrument  entitled  to  be  proved  for  rec- 
ord, may  institute  an  action  in  the  superior  court  against 
the  proper  parties  to  obtain  a  judgment  proving  such  instru- 
ment.    En.  March  21,  1872.     Am'd,  1905,  604. 


101  CIVIL  CODE.  §§    1213-1252 

1203.  The  change  consists  in  the  substitution  of  the  word  "supe- 
rior'' in  the  place  of  "district,"  before  "court."— Code 
Commissioner's   Note. 

§  1213.  Supp,   Cal.   Eep.   Cit.     144,   35. 

§  1214.  Siipp.   Cal.  Eep.   Cit.     144,  31;   144,  35;   145,  413. 

§  1215.  Snpp.  Cal.  Rep.  Cit.     144,  35. 

§  1217.  Supp.  Cal.  Eep.  Cit.     144,  31;  145,  413. 

§  1218.  Recording  of  certified  copies  of  instruments  in 
writing.  A  eortified  copy  of  an  instrument  affecting  the  title 
to  real  property  once  recorded  may  be  recorded  in  any  other 
county,  and,  when  so  recorded,  the  record  thereof  has  the 
same  force  and  effect  as  though  it  was  of  the  original  instru- 
ment.    En.   Stats.   1905,   604. 

1218.  This  is  a  new  section.  It  is  self-explanatory. — Code  Commis- 
sioner's   Note. 

§  1237.  Supp.   Cal.   Eep.   Cit.  141,   649. 

§  1238.  Supp.  Cal.  Eep.  Cit.  144,  617. 

§  1239.  Supp.   Cal.  Eep.  Cit.  141,  462. 

§  1240.  Supp.  Cal.  Eep.  Cit.  140,  621. 

§  1245.  Supp.  Cal.  Eep.  Cit.  144,  663. 

§  1246.  Supp.  Cal.  Eep.  Cit.  144,  663. 

§  1247.  Supp.  Cal.  Eep.  Cit.  144,  663. 

§  1248.  Supp.  Cal.  Eep.  Cit.  144,  663;  145,  533. 

§  1249.  Supp.  Cal.  Eep.  Cit.  144,  663;   145,  533. 

§  1250.  Supp.   Cal.   Eep.   Cit.     144,   663. 

§  1251.  Supp.  Cal.  Eep.  Cit.  144,  663. 

§  1252.  Supp.  Cal.  Eep.  Cit.  144,  663. 


§§   12531265  SUPPLEMENT.  102 

§  1253.  Supp.  Cal.  Ecp.  Cit.     144,  G63. 

§  1254.  Supp.    Cal.    Ecp.    Cit.     144,    663. 

§  1255.  Supp.  Cal.  Ecp.  Cit.     144,  663. 

§  1256.  Supp.  Cal.   Ecp.   Cit.     144,   663. 

§  1257.  Supp.  Cal.  Ecp.  Cit.     144,  663. 

§  1258.  Siipp.  Cal.  Ecp.  Cit.     144,  663. 

§  1259.  Supp.  Cal.   Ecp.    Cit.     144,   663. 

§  1263.     Declaration    of    homestead    must    contain  what. 

The  declaration  of  homestead  must  contain: 

1.  A  statement,  showing  that  the  person  making  it  is  the 
head  of  a  family,  and,  if  the  claimant  is  married,  the  name 
of  the  spouse;  or,  when  the  declaration  is  made  by  the  wife, 
showing  that  her  husband  has  not  made  such  declaration, 
and  that  she  therefore  makes  the  declaration  for  their  joint 
benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on 
the  premises,  and  claims  them  as  a  homestead; 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value.  En.  March  21, 
1872.     Am'd.   1S73-4,   231;    1905,   604. 

1263.  The  change  consists  in  the  insertion  of  the  words  "and  if 
the  claimant  is  married  the  name  of  the  spouse,''  after 
"family." — Code    Commissioner's    Note. 

Supp.  Cal,  Eep.  Cit.  Subd.  2—141,  500.  Subd.  3—141,  500. 
§  1265.  Supp.  Cal.  Eep.  Cit.  139,  72;  139,  151;  144,  147. 


lOa  CIVIL  CODE.  S   1269a 


DIVISIOIT  SECOND. 
PART  IV. 

TITLE  V. 

CHAPTER  IV. 
Chapter  added  March  22,  1905.     Stats.  1905,  725. 

ALIEXATION   OF  HOMESTEADS  OF  INSANE  PERSONS. 

§  1269a.     Petition  for  sale  or  mortgage  of  homestead  where 

husband  or  wife  is  insane. 
§  12696.     Notice   of   application  for  order. 
§   1269e.     When  an  order  may  be  made  to  sell  or  mortgage 

the   homestead   of  an  insane  person. 

§  1269(7.  Petition  for  sale  or  mortgage  of  homestead 
where  husband  or  wife  is  insane.  In  case  of  a  homestead, 
if  either  the  husband  or  wife  becomes  hopelessly  insane,  the 
husband  or  wife  not  insane  may  petition  the  superior  court 
of  the  county  in  which  such  homestead  is  situated  for  an 
order  permitting  the  husband  or  wife,  not  insane,  to  sell  and 
convey,  or  mortgage,  such  homestead  to  raise  moneys  to  sat- 
isfy a  lien  or  charge  thereon,  or  to  provide  for  the  support 
and  care  either  of  the  sane  or  insane  spouse,  or  of  their 
minor  children.  Such  petition  must  be  subscribed  and  sworn 
to  by  the  applicant,  setting  forth  the  name  and  age  of  the 
insane  husband  or  wife;  the  number,  age,  and  sex  of  the 
children,  if  anj'',  of  such  insane  husband  or  wife;  a  descrip- 
tion of  the  premises  constituting  the  homestead;  the  value 
of  the  same;  the  county  in  which  it  is  situated;  and  such 
facts,  in  addition  to  that  of  the  insanity  of  the  husband 
or  wife,  relating  to  the  circumstances  and  necessities  of  the 
applicant  and  his  or  her  family,  as  he  or  she  may  rely  upon 
in  support  of  the  petition.     En.  Stats.  1905,  725. 


5§  1269b,    1269c  SUPPLEMENT.  104 

1269a,  1269b,  1209c.  The  statute  of  1873-4,  page  582,  relating  to 
homesteads  belonging  to  insane  persons,  is  codified  in  the 
above  sections,  which  are  placed  in  a  new  chapter,  entitled 
"Alienation  of  Homesteads  of  Insane  Persons." — Code  Com- 
missioner's  Note. 

§  1269&.  Notice  of  application  for  order.  Notice  of  the 
application  for  such  order  must  be  given  by  publication  of 
the  same,  in  a  newspaper  published  in  the  county  in  which 
such  homestead  is  situated,  if  there  is  a  newspaper  published 
therein,  once  each  week  for  three  successive  weeks,  prior 
to  the  hearing  of  such  application,  and  a  copy  of  such  no- 
tice must  also  be  personally  served  upon  the  nearest  male 
relative  of  such  insane  husband  or  wife,  resident  in  this 
state,  at  least  three  weeks  prior  to  such  application;  and 
in  case  there  is  no  such  male  relative  known  to  the  appli- 
cant, a  copy  of  such  notice  must  be  so  served  upon  the 
public  administrator  of  the  county  in  which  such  homestead 
is  situated;  and  in  such  case  it  is  the  duty  of  such  public 
administrator  to  appear  and  represent  the  interests  of  such 
insane  person.  For  all  such  services  rendered  by  the  public 
administrator  he  must  be  allowed  a  reasonable  fee,  to  be 
fixed  by  the  court,  and  the  same  must  be  taxed  as  costs 
against  the  person  making  application  for  the  order  herein 
provided   for.     En.    Stats.   1905,   726. 

See  note  to  §  1269«,  ante. 

§  '-269c.  When  an  order  may  be  made  to  sell  or  mort- 
gage the  homestead  of  an  insane  person.  If  it  appears  to 
the  court  that  such  husband  or  wife  is  hopelessly  insane, 
the  court  may  make  an  order  permitting  the  husband  or 
wife,  not  insane,  to  sell  and  convey,  or  mortgage,  such  home- 
stead, and  thereafter  any  sale,  conveyance,  or  mortgage  made 
in  pursuance  of  such  order  is  as  valid  and  effectual  as  if  the 
property  affected  thereby  was  the  absolute  property  of  the 
person  making  such  sale,  conveyance,  or  mortgage.  If  a 
sale  is  ordered  it  must  be  reported  to  and  confirmed  by  the 
court.  Such  husband  or  wife  must,  before  executing  any 
mortgage  or  conveyance,  give  a  bond,  to  be  approved  by  the 
judge  of  the  court,  in  double  the  amount  of  the  mortgage, 
or  double  the  value  of  the  property  to  be  sold,  conditioned 
to  account  for  the  proceeds  of  the  mortgage  or  sale  and  to 
apply  such  proceeds  only  as  the  court  may  direct.  En.  Stats. 
1905,  726. 

See  note  to  §  1269(7,  ante. 


105  CIVIL   CODE.  §§    1270-127'? 

§  1270.     Supp.  Cal.  Eep.  Cit.     140,  2S9. 

§  1275.  Who  may  take  property  by  testamentary  disposi- 
tion. A  testamentary  disposition  may  be  mad^  to  any  per- 
son capable  by  law  ol:  taking  the  property  so  disposed  of, 
except  that  corporations  other  than  counties,  municipal  cor- 
porations, and  corporations  formed  for  scientific,  literary,  or 
solely  educational  or  hospital  purposes,  cannot  take  under  a 
■will,  unless  expressly  authorized  by  statute;  subject,  however, 
to  the  provisions  of  section  thirteen  hundred  and  thirteen. 
En.  March  21,  1872.     Am'd.  1873-4,  275;  1903,  258;  1905,  605. 

1275.  The    change    consists    in    the    insertion    of    the    word    "that" 

before  ''corporation,''  and  in  the  insertion  of  the  words 
"counties,  municipal  corporations  and  corporations"  after 
"that."  The  amendment  in  substance  incorporates  into 
the  section  the  provisions  of  the  act  of  1881,  page  2,  au- 
thorizing the  several  counties,  cities  and  counties,  cities 
and  towns,  of  tlie  state,  to  receive  property  by  gift,  be- 
quest and  devise. — Code   Commissioner's  Kote. 

§  1276.  Written  'will;  ho'w  to  be  executed.  Every  will, 
other  than  a  nuncupative  will,  must  be  in  writing;  and  every 
will,  other  than  an  olographic  will,  and  a  nuncupative  will, 
must  be  executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator 
himself,  or  some  person  in  his  presence  and  by  his  direction 
must   subscribe  his   name   thereto; 

2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknowledged  by  the  testator  to 
them  to  have  been  made  by  him  or  by  his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing  or  ac- 
knowledging the  same,  declare  to  the  attesting  witnesses 
that  the  instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  the  same  as  a  witness,  at  the  end  of  the  will,  at 
the  testator's  request  and  in  his  presence.  En.  March  21, 
1872.     Am'd.  1905,  605. 

1276.  The    change    consists    in    the    substitution    of   the   words    "the 

same"    in   place    of    "his    name"    after    "sign."      The   pur- 
pose  of    the    amendment    is    to    avoid    the    strict    construction 
given  to  subdivision  4  in  Estate  of  Walker,   110  Cal.  387. — 
Code  Commissioner's  Note. 
Supp.  Cal.  Rep.  Cit.     142,  375;   145,  409. 

§  1277.     Supp.  Cal.  Eep.  Cit.     145,  83;  145,  409. 


§§    1285-ir?06  SUPPLEMENT.  106 

§  1285.  Will  made  out  of  state  not  valid  in  this  state, 
unless.  No  will  made  out  of  this  state  is  valid  as  a  will  in 
this  state,  unless  executed  according^  to  the  provisions  of  this 
chapter,  except  that  a  will  made  in  a  state  or  country  in 
which  the  testator  is  domiciled  at  the  time  of  his  death,  and 
valid  as  a  will  under  the  laws  of  such  state  or  country,  is 
valid  in  this  state  so  far  as  the  same  relates  to  personal 
property,  subject,  however,  to  the  provisions  of  section  thir- 
teen hundred  and  thirteen.  En.  March  21,  1872.  Am'd. 
1873-4,  232;   1905,  606. 

1285.  The  change  consists  in  the  insertion  of  all  the  matter  after 
the  word  "chapter,"  the  purpose  being  merely  to  state 
what  has  always  been  understood  to  be  the  rule  in  this  state 
respecting  bequests  of  personal  property,  viz. :  that  it  may 
be  bequeathed  in  accordance  with  the  law  of  the  testator's 
domicile.^Code  Commissioner's  Note. 

§  1300.     Effect  of  a  marriage  of  a  woman  on  her  will.     A 

will,  executed  by  a  woman,  is  revoked  by  her  subsequent 
marriage,  and  is  not  revived  by  the  death  of  her  husband. 
En.  March  21,  1872.     Am'd.  1905,  606. 

1300.  The  change  consists  in  the  omission  of  the  word  "unmar- 
ried" before  "women."  The  purpose  of  the  amendment 
is  to  apply  the  same  rule  to  wills  executed  by  married  and 
unmarried  women  with  respect  to  the  revocation  by  sub- 
sequent  marriage. — Code    Commissioner's   Note. 

§  1306.  Child  born  after  making  will,  unprovided  for,  to 
succeed.  Whenever  a  testator  has  a  child  born  after  the 
making  of  his  will,  either  in  his  lifetime  or  after  his  death, 
and  dies  leaving  such  child  unproviaed  for  by  any  settle- 
ment, and  neither  provided  for  nor  in  any  way  mentioned 
in  his  will,  the  child  succeeds  to  the  same  portion  of  the 
testator's  real  and  personal  property  that  he  would  have 
succeeded  to  if  the  testator  had  died  intestate.  But  such 
succession  does  not  impair  or  affect  the  validity  of  any  sale 
of  property  made  bv  authority  of  such  will  in  accordance 
with  the  provisions  of  section  fifteen  hundred  and  sixty-one 
of  the  Code  of  Civil  Procedure.  En.  March  21,  1872.  Am'd. 
1905,  606. 

1306.  The  change  consists  in  the  addition  of  the  last  sentence,  and 
is  intended  to  change  the  rule  of  Smith  v.  Olmstead,  83 
Cal.    582. — Code   Commissioner's   Note. 

Supp.  Cal,  Eep.  Cit.     145,  120. 


107  CIVIL   CODE.  §§    13071 324 

§  1307.  Children,  or  issue  of  children  of  testator  unpro- 
vided for  by  will,  to  succeed;  such  succession  not  to  impair 
validity  of  sale  of  property.  When  any  testator  omits 
to  provide  in  his  will  for  any  of  his  children,  or  for  the  is- 
sue of  any  deceased  child,  unless  it  appears  that  such 
omission  was  intentional,  such  child,  or  the  issue  of  such 
child,  has  the  same  share  in  the  estate  of  the  testator  as  if 
he  had  died  intestate,  and  succeeds  thereto  as  provided  in 
the  preceding  section.  But  such  succession  does  not  impair 
or  affect  the  validity  of  any  sale  of  property  made  by  au- 
thority of  such  will  in  accordance  with  the  provisions  of 
section  fifteen  hundred  and  sixty-one  of  the  Code  of  Civil 
Procedure.     En.  March  21,  1872.     Am'd.  1905,  606. 

1307.      The    change    consists    in    the    addition    of    the    last    sentence. 

(See  note  to  preceding  section.)— Code  Commissioner's  Note. 

Supp.  Cal.  Eep,  Cit.     140,  289;  140,  291;  140,  292;  140,  470- 

§  1308.     Supp.  Cal.  Eep.  Cit.     140,  292;  145,  121;  145,  122. 

§  1310.  On  death  of  legatee,  before  testator,  lineal  de- 
scendants take  estate.  "When  any  estate  is  devised  or  be- 
queathed to  any  child,  or  other  relation  of  the  testator,  and 
the  devisee  or  legatee  dies  before  the  testator,  leaving  lineal 
descendants,  such  descendants  take  the  estate  so  given  by 
the  will,  in  the  same  manner  as  the  devisee  or  legatee  would 
have  done  had  he  survived  the  testator.  En.  March  21^  1872. 
Am'd.  1905,  150. 

1310.      The    provisions    of    this    section    are    new,    and    are    limited    to 
cases  where  a  conviction   for  murder  in   the  first   degree   has 
been   had. — Code    Commissioner's   Note. 
The  code  commissioner  probably  intended  this  note  to  be  to  §  1409 
See   post,    §    1409. 

Supp.  Cal.  Eep.  Cit.     139,  89;  140,  289;  140,  290;  140,  291. 

§  1317.     Supp.  Cal.  Eep.  Cit.     139,  686;  142,  375. 

§  1318.     Supp.  Cal.  Eep.  Cit.     141,  299;  142,  373;  143,  456; 
145,  123. 

§  1319.     Supp.  Cal.  Eep.  Cit.     139,  89. 

§  1322.     Supp.  Cal.  Eep.  Cit.     142,  7. 

§  1324.     Supp.  Cal.  Eep.  Cit.     141,  300. 


§§    13251364  SUPPLEMENT.  108 

§  1325.     Supp.  Cal.  Kep.  Cit.     142,  375. 

§  1326.     Supp.  Cal.  Eep.  Cit.     139,  686;   142,  375;   145,  86. 

§  1327.  Effect  of  technical  words  in  will.  Torlinipal 
PTords  in  a  will  are  to  be  taken  in  tlicir  technical  sense, 
unless  the  context  clearly  indicates  a  contrary  intention,  or 
unless  it  satisfactorily  appears  that  the  will  was  drawn  solely 
by  tlie  testator,  and  that  he  was  unacquainted  with  such 
technical  sense.     En.  March  21,  1872.     Am'd.  1905,  606. 

1327.  The  change  consists  in  the  addition  of  the  clause  following 
the  word  "intention,"  and  provides  that  the  words  in  a 
will  need  not  be  taken  in  a  technical  sense,  if  it  appears 
to  have  been  drawn  by  the  testator,  and  that  he  was  un- 
acquainted  with   such    sense. — Code    Commissioner's    Xote. 

§  1330.  Supp.  Cal.  Eep.  Cit.  145,  346. 

§  1332.  Supp.  Cal.  Eep.  Cit.  142,  7. 

§  1333.  Supp.  Cal.  Eep.  Cit.  142,  6;  142,  7. 

§  1338.  Supp.  Cal.  Eep.  Cit.  143,  270;  144,  127. 

§  1340.  Supp.  Cal.  Eep.  Cit.  142,  374;  142,  376. 

§  1343.  Supp.  Cal.  Eep.  Cit.  lo9,  89;  140,  290. 

§  1350.  Supp.  Cal.  Eep.  Cit.  141,  434. 

§  1357.     Supp.    Cal.    Eep.    Cit.     145,    121.     Subd.     3—143, 
453. 

§  1359.     Supp.   Cal.  Eep.  Cit.     145,  509. 

§  1360.     Supp.  Cal.  Eep.  Cit.     142,  456. 

§  1364.  Heir's  conveyance  good,  unless  will  is  proved 
■within  four  years.  The  rights  of  a  purchaser  or  incum- 
brancer of  real  property,  in  good  faith  and  for  value,  de- 
rived from  any  person  claiming  the  same  by  succession,  are 
not  impaired  by  any  devise  made  by  the  decedent  from  whom 
succession  is  claimed,  unless  within  four  years  after  the  dev- 
isor's death,  the  instrument  containing  such   devise  is  duly 


109'  CIVIL  CODE.  :§§  1366138G 

proved  as  a  will,  and  recorded  in  the  office  of  the  clerk  of 
the  superior  court  having  jurisdiction  thereof,  or  written 
notice  of  such  devise  is  filed  with  the  clerk  of  the  countv 
whore  the  real  property  is  situated.  En.  March  21,  1872. 
Am'd.  1880,  8;  1905,  606. 

1364.  The  change  consists  in  the  transposition  of  the  words 
"within  four  years  after  the  devisor's  deatli,"  by  striking 
them  out  at  the  end  of  the  section,  where  they  now  ap- 
pear, and  placing  them  after  the  word  "unless." — Code 
Commissioner's   Note. 

§  1366.     Supp.  Cal.  Eep.  Cit.     143,  454. 

§  1368.     Supp.  Cal.  Eep.  Cit.     143,  456. 

§  1369.     Supp.  Cal.  Eep.  Cit.     143,  454;  143,  456;  143,  457. 

§  1376.  Laws  governing  validity  and  interpretation  of 
wills.  The  validity  and  interpretation  of  wills,  wherever 
made,  are  governed,  when  relating  to  property  within  this 
state,  by  the  law  of  this  state,  except  as  provided  in  sec- 
tion twelve  hundred  and  eighty-five.  En.  March  21,  1872. 
Am'd.  1873-4,  235;  1905,  607. 

1376.  The  change  consists  in  the  addition  of  the  clause  following 
the  word  "state,"  and  has  been  rendered  necessary  by  the 
proposed  amendment  to  section  1285.— Code  Commissioner's 
Note. 

§  1377.     Supp.  Cal.  Eep.  Cit.     140,  289. 

§  1383.     Supp.  Cal.  Eep.  Cit.     143,  198. 

§  1384.     Supp.  Cal.  Eep.  Cit.     143,  198. 

§  1386.  Succession  to  and  distribution  of  property  of  de- 
ceased person.  When  any  person  having  title  to  any  estate 
not  otherwise  limited  by  marriage  contract,  dies  without 
disposing  thereof  by  will,  it  is  succeeded  to  and  must  be 
distributed,  unless  otherwise  expressly  provided  in  this  code 
and  the  Code  of  Civil  Procedure,  subject  to  the  payment  of 
his  debts,  in  the  following  manner: 

1.  If  the  decedent  leaves  a  surviving  husband  or  wife, 
and  only  one  child,  or  the  lawful  issue  of  one  child,  in  equal 
shares  to  the  svirviving  husband,  or  wife  and  child,  or  is- 
sue of  such  child.  If  the  decedent  leaves  a  surviving  hus- 
Civil  Code— 10 


§   1386  SUPPLEMENT.  110 

band  or  wife,  and  more  than  one  child  living,  or  one  child 
living  and  the  lawful  issue  of  one  or  more  deceased  chil- 
dren, one  third  to  the  surviving  husband  or  wife,  and  the 
remainder  in  equal  shares  to  his  children  and  to  the  law- 
ful issue  of  any  deceased  child,  by  right  of  representation; 
but  if  there  is  no  child  of  decedent  living  at  his  death,  the 
remainder  goes  to  all  of  his  lineal  descendants;  and  if  all 
of  the  descendants  ai'e  in  the  same  degree  of  kindred  to 
the  decedent,  they  share  equally,  otherwise  they  take  ac- 
cording to  the  right  of  representation.  If  the  decedent 
leaves  no  surviving  husband  or  wife,  but  leaves  issue,  the 
■whole  estate  goes  to  such  issue;  and  if  such  issue  consists 
of  more  than  one  child  living,  or  one  child  living  and  the 
lawful  issue  of  one  or  more  deceased  children,  then  the  es- 
tate goes  in  equal  shares  to  the  children  living,  or  to  the 
child  living  and  the  issue  of  the  deceased  child  or  chil- 
dren by  right  of  representation; 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes  one 
half  to  the  surviving  husband  or  wife,  and  the  other  half 
to  the  decedent's  father  and  mother  in  equal  shares,  and  if 
either  is  dead  the  whole  of  said  half  goes  to  the  other.  If 
there  is  no  father  or  mother,  then  one-half  goes  in  equal 
shares  to  the  brother^  and  sisters  of  decedent  and  to  the 
children  or  grandchildren  of  any  deceased  brother  or  sister 
by  right  of  representation.  If  the  decedent  leaves  no  issue, 
nor  husband  nor  wife,  the  estate  must  go  to  his  father  and 
mother  in  equal  shares,  or  if  either  is  dead  then  to  the 
other; 

3.  If  there  is  neither  issue,  husband,  wife,  father,  nor 
mother  then  in  equal  shares  to  the  brothers  and  sisters  of 
decedent  and  to  the  children  or  grandchildren  of  any  de- 
ceased brother   or   sister,  by  right  of  representation; 

4.  If  the  decedent  leaves  a  surviving  husband  or  wife, 
and  neither  issue,  father,  mother,  brother,  sister,  nor  the 
children  or  grandchildren  of  a  deceased  brother  or  sister, 
the  whole  estate  goes  to  the  surviving  husband  or  wife; 

5.  If  the  decedent  leaves  neither  issue,  husband,  wife, 
father,  mother,  brother,  nor  sister,  the  estate  must  go  to 
the  nest  of  kin,  in  equal  degree,  excepting  that,  when  there 
are  two  or  more  collateral  kindred,  in  equal  degree,  but 
claiming  through  different  ancestors,  those  who  claim  through 
the  nearest  ancestor  must  be  preferred  to  those  claiming 
through  an  ancestor  more  remote; 


Ill  CIVIL  CODE.  §    1385 

6.  If  the  decedent  leaves  several  children,  or  one  child 
and  the  issue  of  one  or  more  children,  and  any  such  sur- 
viving child  dies  under  age,  and  not  having  been  married, 
all  the  estate  that  came  to  the  deceased  child  by  inherit- 
ance from  such  decedent  descends  in  equal  shares  to  the 
other  children  of  the  same  parent  and  to  the  issue  of  any 
such  other  children  who  are  dead,  by  right  of  representa- 
tion; 

7.  If,  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents 
are  also  dead,  and  any  of  them  has  left  issue,  the  estate  that 
came  to  such  child  by  inheritance  from  his  parent  descends 
to  the  issue  of  all  other  children  of  the  same  parent;  and  if 
all  the  issue  are  in  the  same  degree  of  kindred  to  the  child, 
they  share  the  estate  equally,  otherwise  they  take  according 
to  the  right  of  representation; 

8.  If  the  decedent  is  a  widow  or  widower,  and  leaves  no 
issue,  and  the  estate  or  any  portion  thereof  was  common 
property  of  such  decedent  and  his  or  her  deceased  spouse, 
while  such  spouse  was  living,  or  was  separate  property  of  his 
or  her  deceased  spouse,  while  such  spouse  was  living,  such 
property  goes  to  the  children  of  such  deceased  spouse  and 
the  descendants  thereof,  and  if  none,  then  to  the  father  of 
such  deceased  spouse,  or  if  he  is  dead,  to  the  mother.  If 
there  is  no  father  nor  mother,  then  such  property  goes  to  the 
brothers  and  sisters  of  such  deceased  spouse,  in  equal  shares, 
and  to  the  lawful  issue  of  any  deceased  brother  or  sister  of 
such  deceased  spouse  by  right  of  representation; 

9.  If  the  decedent  leaves  no  husband,  wife,  or  kindred,  and 
there  are  no  heirs  to  take  his  estate  or  any  portion  thereof, 
under  subdivision  eight  of  this  section,  the  same  escheats  to 
the  state  for  the  support  of  the  common  schools.  En.  March 
21,  1872.     Am'd.  1873-4,  2S6;  1880,  14;  1905,  607. 

1386.  A  clerical  error  is  corrected  by  renumbering  the  subdivisions; 
certain  errors  of  grammar  are  corrected.  The  words  "or 
grandchild"  are  inserted  after  "child";  the  words  "nor 
the  child  or  grandchild  of  a  deceased  brother  or  sister' ' 
are  inserted  after  "sister";  the  words  "children  of  such 
deceased  spouse  and  the  descendants  thereof,  and  if  none, 
then  to,"  are  inserted.  In  the  second  line  of  subdivision 
8,  the  word  "issue"  is  substituted  for  "kindred,"  and 
the  subdivision  amended  in  accordance  with  the  urgent  re- 
quest of  Judge  Gray  of  the  Supreme  Court  Commission  to 
overcome  such  cases  as  Estate  of  McCauley,  138  Cal.  546.— 
Code   Commissioner's   Note. 

Supp.  Cal.  Eep.  Cit.  140,  469;  143,  198;  14.3,  202;  143, 
205.     Subd.  9—143,  207.     Subd.  10—143,  197. 


§§   13871401  SUPPLEMENT.  112 

§  1387.     Snpp.  Cal.  Ecp.  Cit.     142,  159;  142.  1G8;  142,  170; 
142,  171. 

§  1388.  Property  of  illegitimate  child  is  succeeded  to, 
■when  and  how.  The  estate  of  an  illegitimate  child,  who  has 
been  legitimated  by  the  subsequent  marriage  of  its  parents, 
or  adopted  by  the  father  as  provided  by  section  two  hun- 
dred and  thirty,  and  who  dies  intestate,  is  succeeded  to  as 
if  he  were  born  in  lawful  wedlock.  If  such  child  has  not 
been  so  legitimated  or  adopted,  his  estate  goes  to  his  lawful 
issue,  or,  if  he  leaves  no  issue,  to  his  mother,  or  in  case  of 
hev  decease,  to  her  heirs  at  law.  En.  March  21,  1872.  Am'd. 
1905,  609. 

1388.  The  amendment  consists  in  declaring  that  if  an  illegitimate 
child  has  been  legitimated,  his  estate  on  his  death  is  suc- 
ceeded to  as  if  he  were  born  in  wedlock. — Code  Commis- 
sioner's Note. 

§  1395.  Advancements  constitute  part  of  distributive 
share.  Any  estate,  real  or  personal,  given  by  the  decedent 
in  his  lifetime  as  an  advancement  to  any  child,  or  other  heir, 
is  a  part  of  the  estate  of  the  decedent  for  the  purposes  of 
division  and  distribution  thereof  among  his  heirs,  and  must 
be  taken  by  such  child,  or  other  heir,  toward  his  share  of 
the  estate  of  the  decedent.  En.  March  21,  1872.  Am'd.  1905, 
609. 

1395.  The  change  consists  in  the  substitution  of  the  words  "other 
heir''  for  ''other  lineal  descendants,"  and  in  the  substitu- 
tion  of    "heirs"    for    "issue." — Code    Commissioner's   Note. 

§  1399.     When  heir  advanced  to,  dies  before  decedent.     If 

any  child,  or  other  heir  receiving  advancement,  dies  before 
the  decedent,  leaving  heirs,  the  advancement  must  be  taken 
into  consideration  in  the  division  and  distribution  of  the 
estate,  and  the  amount  thereof  must  be  allowed  accordingly 
by  the  representatives  of  the  heirs  receiving  the  advance- 
ment, in  like  manner  as  if  the  advancement  had  been  made 
directly  to  them.     En.  March  21,  1S72.     Am'd.  1905,  609. 

1399.  The  change  consists  in  the  substitution  of  the  words  "other 
heir''  for  "other  lineal  descendant''  before  "receiving,'' 
and  in  the  substitution  of  "heirs"  for  "issue"  after 
"leaving.'' — Code    Commissioner's   Note. 

§  1401.     Supp.  Cal.  Eep.  Cit.     143,  295. 


113  CIVIL  CODE.  §§    14041409 

§  1404.     Supp.  Cal.  Kep.  Cit.     143,  140, 

§  1405.  Succession  not  claimed,  attorney-general  to  cause 
to  be  sold  and  proceeds  deposited  with  state  treasurer. 
When  succession  is  not  claimed  as  provided  in  the  preceding' 
section,  the  superior  court,  on  information,  must  direct  the 
attorney-general  to  reduce  the  property  to  his  possession  or 
that  of  the  state,  or  to  cau-se  it  to  be  sold,  and  it  or  its  pro- 
ceeds to  be  deposited  in  the  state  treasury  for  the  benefit  of 
the  person  entitled  thereto,  to  be  paid  to  him,  if,  within 
five  years  after  such  deposit,  he  appears  in  the  court  in 
which  such  information  was  filed  and-  asks  for  a  judgment 
or  order  entitling  him  thereto.  En.  March  21,  1872.  Am'd. 
1905,  609. 

1405.  The    change    consists    in    the    substitution    of    the    words    "su- 

perior court"  for  "district  court"  before  "or,"  and  in 
the  substitution  of  the  words  "he  appears  in  the  court  in 
which  such  information  was  filed  and  asks  for  a  judgment 
or  order  entitling  him  thereto,"  in  place  of  the  words 
"proof  to  the  satisfaction  of  the  state  comptroller  and 
treasurer  be  produced  that  he  is  entitled  to  succession 
thereto."  The  design  of  the  amendment  is  to  require  the 
proof  of  the  right  to  succession  to  be  made  in  court  in- 
stead of  vesting  the  controller  and  treasurer  with  power  to 
determine   the   question. — Code    Commissioner's   Note. 

§  1406.  Property,  delivered  to  claimant,  when;  escheats 
to  the  state,  when.  When  such  judgment  or  order  is  ob- 
tained, a  certified  copy  thereof  must  be  filed  with  the  state 
treasurer  as  his  voucher.  Thereupon  the  property  must  be 
delivered,  or  the  proceeds  paid,  to  the  claimant,  on  filing  his 
receipt  therefor.  If  no  one  succeeds  to  the  estate  or  the 
proceeds,  as  herein  provided,  the  property  of  the  decedent 
devolves  and  escheats  to  the  people  of  the  state,  and  must 
be  placed  by  the  state  treasurer  to  the  credit  of  the  school 
fund.     En.  March  21,  1872.     Am'd.  1905,  610, 

1406.  This  section  is  recast  to  conform  to  the  proposed  amendment 

to  the  last  section. — Code  Commissioner's  Note. 

§  1409.  Person  convicted  of  murder  of  decedent  not  to 
succeed.  No  person  who  has  been  convicted  of  the  murder  of 
the  decedent  shall  be  entitled  to  succeed  to  any  portion  of 
his  estate;  but  the  portion  thereof  to  which  he  would  other- 
wise be  entitled  to  succeed  descends  to  the  other  persons 
entitled  thereto  under  the  provisions  of  this  title.  En.  Stats. 
1905,  610. 


§§    14121522  SUPPLEMENT.  114 

1409.  This  is  a  new  section  corresponding  to  section  1314. — Code 
Commissioner's   Note. 

Sec  note  to  §  1310,  ante. 

§  1412.  Supp.  Cal.  Eep.  Cit.  138,  721;  133,  722. 

§  1431.  Supp.  Cal.  Eep.  Cit.  140,  537. 

§  1440.  Supp.  Cal.  Eep.  Cit,  144,  401. 

§  1442.  Supp.  Cal.  Eep.  Cit.  14o,  184. 

§  1458.  Supp.  Cal.  Eep.  Cit.  144,  260. 

§  1459.  Supp.  Cal.  Eep.  Cit.  144,  35. 

§  1468.  Transfer  of  obligations;  covenants  to  run  with 
land.  A  covenant  made  by  the  owner  of  land  with  the 
owner  of  other  land  to  do  or  refrain  from  doing  some  act 
on  his  own  land,  which  doing  or  refraining  is  expressed  to 
be  for  the  benefit  of  the  land  of  the  covenantee,  and  which 
is  made  by  the  covenantor  expressly  for  his  assigns  or  to 
the  assigns  of  the  covenantee,  runs  with  both  of  such  par- 
cels of  land.     En.  Stats.  1905,  610. 

1468.  This  is  a  new  section,  and  is  designed  to  remove  any  doubt 
that  covenants  of  the  kind  mentioned  therein  run  with  the 
land. — Code  Commissioner's  Note. 

§  1479.  Supp.  Cal.  Eep.  Cit.  145,  34.  Subd.  1—144,  782. 
Subd.  3—141,  338. 

§  1488.  Supp.  Cal.  Eep.  Cit.  141,  316. 

§  1489.  Supp.  Cal.  Eep.  Cit.  141,  316. 

§  1500.  Supp.  Cal.  Eep.  Cit.  141,  712;  141,  713. 

§  1504.  Supp.  Cal.  Eep.  Cit.  143,  667;  143,  670. 

§  1511.  Supp.  Cal.  Eep.  Cit.  Subd.  3—144,  401. 

§  1521.  Supp.  Cal.  Eep.  Cit.  142,  41. 

§  1522.  Supp.  Cal.  Eep.  Cit.  142,  41. 


115  CIVIL  CODE.  §§    15231624 

§  1523.  Supp.   Cal.  Eep.  Cit.     142,  41. 

§  1531.  Supp.   Cal.  Eep.   Cit.     Subd.   2—143,  7. 

§  1543.  Supp.  Cal.  Eep.  Cit.     145,  533. 

§  1550.  Supp.  Cal.  Eep.  Cit.     139,  512;  145,  498. 

§  1559.  Supp.  Cal.  Eep.  Cit.     142,  708. 

§  1565.  Supp.   Cal.  Eep.   Cit.     139,  512;   140,  162. 

§  1567.  Supp.  Cal.  Eep.  Cit.     141,  62. 

§  1568.  Supp.   Cal.  Eep.   Cit.     138,   671;   145,  448. 

§  1572.  Supp.  Cal.  Eep.  Cit.  141,  62;  144,  312.  Subd.  3— 
138,  671.  Subd.  4—133,  671;  141,  390,  Subd. 
5—138,  671. 

§  1575.  Supp.   Cal.   Eep.   Cit.     141,   62. 

§  1577.  Supp.  Cal.  Eep.  Cit.  138,  671.  Subd.  1—144, 
110. 

§  1578.  Supp.  Cal.  Eep.  Cit.     Subd.  2—138,  671. 

§  1581.  Supp.  Cal.  Eep.  Cit.     140,  162. 

§  1584.  Supp.  Cal.  Eep.  Cit.     141,  706. 

§  1585.  Supp.   Cal.   Eep.   Cit.     140,   161;   145,  625, 

§  1589.  Supp.   Cal.   Eep.   Cit.     141,  706;   144,   112. 

§  1605.  Supp.  Cal.  Eep.  Cit.     139,  168;   145,  500. 

§  1614.  Supp.  Cal.  Eep.  Cit.     143,  533, 

I  1615.  Supp.  Cal.  Eep.  Cit.     143,  533. 

§  1624.  Contracts,  what  must  be  written.     The  following 

contracts  are    invalid,    unless    the    same,    or    some    note    or 


S   1G24  SUPPLEMENT.  lid 

memorandum  thereof,  is  in   writing  and   subscribed  by  the 
party  to  be   charji^ed,   or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  except  in  the  cases  provided  for  in 
section  twenty-seven  hundred  and  ninety-four; 

3.  An  agreement  made  upon  consideration  of  marriage 
other  than  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things 
in  action,  at  a  price  not  less  than  two  hundred  dollars,  unless 
the  buyer  accepts  or  receives  part  of  such  goods  and  chat- 
tels or  the  evidences,  or  some  of  them,  of  such  things  in  ac- 
tion, or  pays  at  the  time  some  part  of  the  purchase  money; 
but  when  a  sale  is  made  at  auction,  an  entry  by  the  auc- 
tioneer in  his  sale  book,  at  the  time  of  the  sale,  of  the  kind 
of  property  sold,  the  terms  of  the  sale,  the  price,  and  the 
names  of  the  purchaser  and  person  on  whose  account  the  sale 
is  made,  is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  thaa 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein;  and  such  agreement,  if  made  by  an  agent  of  the 
party  sought  to  be  charged,  is  invalid,  unless  the  authority  of 
the  agent  is  in  writing,  subscribed  by  the  party  sought  to  be 
charged; 

6.  An  agreement  authorizing  or  employing  an  agent  or 
broker  to  purchase  or  sell  real  estate  for  comx^ensation  or  a 
commission; 

7.  An  agreement  which  by  its  terms  is  not  to  be  performed 
during  the  lifetime  of  the  promisor,  or  an  agreement  to  de- 
vise or  bequeath  any  property,  or  to  make  any  provision  for 
any  person  by  will.  En.  March  21,  1872.  Am"'d.  1873-4,  241; 
1877-8,  86;  1905,  611. 

1624.  The  change  consists  in  the  addition  of  suhdivision  7.  The 
cases  in  which  it  is  sought  to  establish  by  parol  evidence 
alleged  agreements  to  provide  for  a  person  by  will  are  be- 
coming so  numerous  as  to  warrant  the  assumption  that  the 
reasons  inducing  the  original  enactment  of  the  statute  of 
frauds  apply  with  espe'cial  force  to  agreements  of  this  class 
and  that  they  ought  to  be  brought  within  that  statute. — Code 
Commissioner's   Note. 

Supp.  Cal.  Eep.  Cit.  142,  403.  Subd.  1—140,  689.  Subd. 
5—143,  366.  Subd.  6—141,  111. 


117  CIVIL  CODE.  §§    1625-1671 

§  1625.  Effect  Of  written  contracts.  TTie  execution  of  a 
contract  in  writing,  whether  the  law  requires  it  to  be  writ- 
ten or  not,  supersedes  all  the  neg-otiations  or  stipulations 
concerning  its  matter  which  preceded  or  accompanied  the 
execution  of  the  instrument.  En.  March  21,  1872.  Am'd. 
1905,  611. 

1625.      The  change  consists  in  the  omission  of  the  word    "oral"   be- 
fore   "negotiations." — Code    Commissioner's    Note. 

Supp.  Cal.  Eep.  Cit.     141,  228;  141,  734. 

§  1636.     Supp.  Cal.  Eep.  Cit.     141,  102;  141,  731. 

§  1637.     Supp.  Cal.  Eep.  Cit.     141,  102. 

§  1638.     Supp.  Cal.  Eep.  Cit.     141,  228;  141,  734. 

§  1639.     Supp.  Cal.  Eep.  Cit.     141,  228;  141,  734. 

§  1642.     Supp.  Cal.  Eep.  Cit.     142,  144. 

§  1643.     Supp.  Cal.  Eep.  Cit.     141,  102;  144,  37. 

§  1644.     Supp.  Cal.  Eep.  Cit.     144,  37. 

§  1645.     Supp.  Cal.  Eep.  Cit.     144,  37. 

§  1646.     Supp.  Cal.  Eep.  Cit.     141,  735. 

§  1647.     Supp.   Cal.  Eep.   Cit.     141,   261;   141,  731. 

§  1648.     Supp.  Cal.  Eep.  Cit.     141,  731. 

§  1653.     Supp.  Cal.  Eep.  Cit.     141,  731. 

§  1654.     Supp.  Cal.  Eep.  Cit.     141,  102;  141,  454. 

§  1657.     Supp.  Cal.  Eep.  Cit.     143,  366. 

§  1659.     Supp.  Cal.  Eep.  Cit.     140,  537. 

§  1670.     Supp.  Cal.  Eep.  Cit.     144,  499. 

§  1671.     Supp.  Cal.  Eep.  Cit.     144,  499;  144,  500. 


§§    16731774  SUPPLEMENT.  118 

§  1673.  Supp.  Cal.  Rep.  Cit.     145,  337. 

§  1674.  Supp.  Cal.  Eep.  Cit.     145,  387. 

§  1689,  Supp.  Cal,  Rep,  Cit.     Stibd.  2—138,  672. 

§  1691.  iSupp.  Cal.  Rep.  Cit.     Subd.  1—142,  320. 

§  1698.  Supp.  Cal.  Rep.  Cit.     140,  62. 

§  1741.  Supp.  Cal.  Rep.  Cit.     140,  159;  142,  156. 

§  1764.  Supp.  Cal.  Rep.  Cit.     139,  584;  145,  280. 

§  1766.  Supp,  Cal.  Rep.  Cit.     145,  278. 

§  1771.  Supp.  Cal.  Rep.  Cit.     145,  280. 

§  1774.  Supp.  Cal.  Rep.  Cit.     139,  585. 


DIVISION  THIED. 

PART  IV. 

TITLE  III. 

CHAPTER  II. 

CHAPTER  [ARTICLE]   Ilia. 

Article  added  March  21,  1905.     Stats.  1905,  612. 

WAREHOUSEMEN". 

1858.       Warehouse  receipts,  when  must  not  be  issued. 

1858a.  Property  not  to  be  removed  without  consent  in 
writing. 

18586.     Warehouse  receipts,  classification  and  effect  of. 

1858c.  Indorsement  on  negotiable  receipt  of  property  de- 
livered. 


119  CIVIL  CODE.  §§    1858-1858b 

§  1853(f,     Negotiable  receipts  and  their  effect. 
§  1858e.     Liability  for  loss  by  fire. 
§   1858f.     Penalties  and  liabilities. 

§  1858.  Warehouse  receipts,  when  must  not  he  issued.  A 
warehouseman,  "wharfinger,  or  other  person  doing  a  storage 
business  must  not  issue  any  receipt  or  voucher  for  any  mer- 
chandise, grain,  or  other  product  or  thing  of  value,  to  any 
person  purporting  to  be  the  owner  thereof,  nor  to  any  person 
as  security  for  any  indebtedness  or  for  the  performance  of 
any  obligation,  unless  such  merchandise,  grain,  or  other 
product,  commodity,  or  thing  has  been,  in  good  faith,  received 
ty  such  warehouseman,  wharfinger,  or  other  person,  and  is  in 
his  store  or  under  his  control  at  the  time  of  issuing  his  re- 
ceipt; nor  must  any  second  receipt  for  any  such  property  be 
issued  while  a  former  receipt  for  any  part  thereof  is  out- 
standing and  uncanceled.     En.  Stats.   1905,  612. 

1858,  1858a,  1858b,  1858c,  1858d,  1858e,  1858f.  The  statute  of 
1877-8,  page  949,  relating  to  warehousemen's  and  wharfin- 
gers' receipts,  is  codified  in  the  above  sections. — Code  Com- 
missioner's Note. 

§  1858rt.  Property  not  to  be  removed  without  consent  in 
writing.  No  warehouseman,  wharfinger,  or  other  person  must 
sell  or  incumber,  ship,  transfer,  or  remove  beyond  his  im- 
mediate control  any  property  for  which  a  receipt  has  been 
given,  without  the  consent  in  writing  of  the  person  holding 
such  receipt  plainly  indorsed  thereon  in  ink.  En.  Stats. 
1905,  612. 

See  note  to  §  1858,  ante. 

§  18586.    Warehouse   receipts,   classification  and  effect  of. 

Warehouse  receipts  for  property  stored  are  of  two  classes: 
first,  transferable  or  negotiable;  and  second,  non-transferable 
or  non-negotiable.  Under  the  first  of  these  classes  the  prop- 
erty is  transferable  by  indorsement  of  the  party  to  whose 
order  such  receipt  was  issued,  and  such  indorsement  is  a  valid 
transfer  of  the  property  represented  by  the  receipt,  and  may 
be  in  blank  or  to  the  order  of  another.  AH  warehouse  re- 
ceipts must  distinctly  state  on  their  face  for  what  they  are 
Issued  and  its  brands  and  distinguishing  marks  and  the  rate 
of  storage  per  month  or  season,  and,  in  the  case  of  grain, 
the  kind,  the  number  of  sacks,  and  pounds.  If  a  receipt  is 
not  negotiable,  it  must  have  printed  across  its  face,  in  red 


§§    1858t  i858f  SUPPLEMENT.  120 

ink,  in    bold,  distinct    letters,  the  word    "non-negotiable." 
En.  Stats.  1905,  612. 
'See  note  to  §  1858,  ante. 

§  18580.  Indorsement  on  negotial)le  receipt  of  property- 
delivered.  If  a  negotiable  receipt  is  issued  for  any  prop- 
erty, neither  the  person  issuing  it  nor  any  other  person  into 
whose  care  or  control  the  property  comes  must  deliver  any 
part  thereof  without  indorsing  on  the  back  of  the  receipt, 
in  ink,  the  amount  and  date  of  the  delivery;  nor  can  he  be 
allowed  to  make  any  offset,  claim,  or  demand  other  than  is 
expressed  on  the  face  of  the  receipt,  when  called  upon  to 
deliver  any  property  for  which  it  was  issued.  En.  Stats. 
1905,   612. 

See  note  to  §  1858,  ante. 

§  1858d.  Negotiable  receipts  and  their  effect.  If  a  non- 
negotiable  receipt  is  issued  for  any  property,  neither  the 
person  isssuing  nor  any  other  person  in  whose  care  or  con- 
trol the  property  comes  must  deliver  any  part  thereof,  ex- 
cept upon  the  written  order  of  the  person  to  whom  the  re- 
ceipt was  issued.     En.  Stats.  1905,  612. 

See  note  to  §  1858,  ante. 

§  1858e.  Liability  for  loss  by  fire.  No  warehouseman  or 
other  person  doing  a  general  storage  business  is  responsible 
for  any  loss  or  damage  to  property  by  fire  while  in  his  cus- 
tody, if  he  exercises  reasonable  care  and  diligence  for  its 
protection  and  preservation.     En.  Stats.  1905,  613. 

See  note  to  §  1858,  ante. 

§  1858f.  Penalties  and  liabilities.  Every  warehouseman, 
wharfinger,  or  other  person  who  violates  any  of  the  provi- 
sions of  sections  eighteen  hundred  and  fifty-eight  to  eighteen 
hundred  and  fifty-eight  e,  inclusive,  is  guilty  of  a  felony, 
and,  upon  conviction  thereof,  may  be  fined  in  a  sum  not 
exceeding  five  thousand  dollars,  or  imprisoned  in  the  state 
prison  not  exceeding  five  years,  or  both.  He  is  also  liable 
to  any  person  aggrieved  by  such  violation  for  all  damages, 
immediate  or  consequent,  which  he  may  have  sustained 
therefrom,  which  damages  may  be  recovered  by  a  civil  ac- 
tion in  any  court  of  competent  jurisdiction,  whether  the  of- 
fender has  been  convicted  or  not.     En.  Stats.  1905,  613. 

See  note  to  §  1S5S,  ante. 


121  CIVIL   CODE.  §§    1865-1871 

§  1865.  Finder  of  goods  or  money,  or  saving  animals, 
duty  of.  If  the  finder  of  a  thing,  other  than  a  domestic  ani- 
mal, takes  possession  thereof,  or  if  a  person  saves  any  such 
animal  from  drowning  or  starvation,  lie  must,  within  a  rea- 
sonable time,  inform  the  owner  thereof,  if  known,  and  make 
restitution  to  him  upon  demand,  without  compensation, 
except  a  reasonable  charge  for  saving  and  caring  therefor. 
If  the  owner  is  not  known  to  such  finder  or  saver,  he  must, 
within  five  days,  file  an  affidavit  with  the  justice  of  the 
peace  of  the  county  whose  office  is  nearest  to  the  place  of 
such  finding  or  saving,  particularly  describing  the  property 
and  the  time,  place,  and  circumstances  under  which  it  was 
found  or  saved.  Such  justice  must  then  summon  three  dis- 
interested persons  to  appraise  the  property.  They,  or  a 
majority  of  them,  must  make  two  lists  of  the  valuation  and 
description  of  the  property,  by  them  verified,  and  deliver  one 
of  such  lists  to  the  justice  of  the  peace,  to  be  kept  by  him 
on  file  in  his  office,  and  the  other  list  must  be  delivered  to 
such  finder  or  saver,  who  must,  within  five  days  thereafter, 
cause  it  to  be  filed  for  record  in  the  office  of  the  county  re- 
corder of  the  county,  who  must  record  it  in  a  book  known  as 
the  "Estrav  and  Lost  Property  Book."  En.  March  21, 
1872.     Am'd.  1905,  613. 

1865.  The  section  is  amended  to  incorporate  therein  the  provisions, 
upon  the  same  subject,  of  sections  3136,  3137,  and  3138  of 
the  Political  Code.— Code  Commissioner's  Note. 

§  1871.  Property  vests  in  finder,  when;  publication  in 
certain  cases;  liability  of  finder  to  owner.  If  no  owner  ap- 
pears within  six  months  after  such  finding  or  saving  and 
offers  reasonable  proof  of  his  ownership,  and  compensates, 
or  in  good  faith  offers  to  compensate,  the  finder  or  saver 
for  the  expense  necessarily  incurred  by  him,  then  such 
property  vests  in  such  finder  or  saver,  unless  it  is  of  greater 
value  than  twenty  dollars.  If  of  such  greater  value,  he 
must  publish  a  copy  of  such  verified  list  for  three  succes- 
sive weeks  in  some  newspaper  of  general  circulation  pub- 
lished in  the  county,  and  if  the  owner  docs  not,  within  one 
year  after  the  completion  of  such  publication,  prove  the 
property  and  pay,  or  in  good  faith  offer  to  pay,  all  charges 
thereon,  the  title  thereto  vests  in  such  finder  or  saver.  If 
the  finder  or  saver  of  property  does  not  comply  with  the 
provisions  of  section  eighteen  hundred  and  sixty-five,  or  if, 
though  he  does  so  comply,  he  refuses  to  surrender  the  prop- 
Civil  Code— 11 


§§    19171932  SUPPLEMENT.  122. 

erty  to  an  owner  who  has  made  reasonable  proof  of  own- 
ership, and  paid,  or  in  good  faith  offered  to  pay,  all  legal 
charges  thereon,  he  is  liable  to  the  owner  for  double  the 
value  of  the  property,  and  the  owner  may  exonerate  him- 
self from  all  liability  arising  out  of  such  property  by  sur- 
rendering, or  offering  to  surrender,  it  in  satisfaction  there- 
of.    En.  March   21,  1872.     Am'd.   1905,  614. 

1871.  The  section  is  amended  to  incorporate  therein  the  provisions 
of  sections  3139,  3140,  and  3141  of  the  Political  Code.— 
Code   Commissioner's   Note. 

§  1917.     Supp.   Cal.   Eep.    Cit.     143,   527. 

§  1929.  Hirer  to  repair  injuries.  The  hirer  of  a  thing- 
must  repair  all  deteriorations  or  injuries  thereto  occasioned 
by  his  want  of  ordinary  care.  En.  March  21,  1872.  Am'd. 
1905,   614. 

1929.  The   change   consists   in  the   substitution   of  the  words    "want 

of  ordinary  care"  for  "ordinary  negligence." — Code  Com- 
missioner's   Note. 

§  1930.     Thing    let  for    a  particular    purpose.     When    a 

thing  is  let  for  a  particular  purpose  the  hirer  must  not  use 
it  for  any  other  purpose;  and  if  he  does,  he  is  liable  to  the 
letter  for  all  damages  resulting  from  such  use,  or  the  letter 
may  treat  the  contract  as  thereby  rescinded.  En.  March 
21,  1872.     Am'd.   1905,  614. 

1930.  The  change   consists  in  the   substitution  of  the  words    "he  is 

liable  to  the  letter  for  all  damages  resulting  from  such  use, 
or  the  letter"  in  place  of  the  words  "the  letter  who  is  re- 
sponsible for  its  safety  during  such  use  in  all  events,  or." 
Code   Commissioner's  Note. 

§  1932.  Hirer  may  terminate  the  hiring,  when.  The 
hirer  of  a  thing  may  terminate  the  hiring  before  the  end 
of   the   term   agreed   upon: 

1.  When  the  letter  does  not,  within  a  reasonable  time 
after  request,  fulfill  his  obligations,  if  any,  as  to  placing  and 
securing  the  hirer  in  the  quiet  possession  of  the  thing  hired, 
or  putting  it  into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or  that  part 
■which  was  and  which  the  letter  had  at  the  time  of  the  hiring 
reason  to  believe  was  the  material  inducement  to  the  hirer 
to   enter  into   the   contract,   perishes  from   any   other   cause 


12a  CIVIL  CODE.  §§   1970-2180 

than  the  want  of  ordinary  care  of  the  hirer.     En.  March  21, 
1S72.     Am'd.    1905,    614. 

1932.  The  change  consists  in  the  substitution  of  the  words  "want 
of  ordinary  care"  for  "ordinary  negligence."— Code  Com- 
missioner's Note. 

§  1970.     Supp.   Cal.   Eep.   Cit.     142,   255. 

§  1980.     Supp.   Cal.  Eep.  Cit.     139,  81;   139,   84. 

§  2012.     Supp.  Cal.  Eep.  Cit.     145,  267. 

§  2161.  Oliligation  of  carrier  of  messages.  A  carrier  of 
messages  for  reward,  other  than  by  telegraph  or  telephone, 
must  deliver  them  at  the  place  to  which  they  are  addressed, 
or  to  the  person  for  whom  they  are  intended.  Such  carrier, 
by  telegraph  or  telephone,  must  deliver  them  at  such  place 
and  to  such  person,  provided,  the  place  of  address,  or  the 
person  for  whom  they  are  intended,  is  within  a  distance 
of  two  miles  from  the  main  office  of  the  carrier  in  the  city 
or  town  to  which  the  messages  are  transmitted,  and  the 
carrier  is  not  required,  in  making  the  delivery,  to  pay  on 
his  route  toll  or  ferriage;  but  for  any  distance  beyond  one 
mile  from  such  office,  compensation  may  be  charged  for  a 
messenger  employed  by  the  carrier.  En.  March  21,  1872. 
Am'd.  1873-4,  248;   1905,  627. 

2161.  The  change  consists  in  the  insertion  of  the  words  "or  tele- 
phone" after  "telegraph"  in  two  places,  thus  making  the 
section  applicable  to  both  telegraph  and  telephone  com- 
panies.— Code    Commissioner's    Note. 

§  2180.  Common  carriers  of  persons,  obligation  to  carry 
baggage.  A  common  carrier  of  persons,  unless  his  vehicle 
is  fitted  for  the  reception  of  persons  exclusively,  must 
receive  and  carry  a  reasonable  amount  of  baggage  for 
each  passenger  without  charge,  except  for  an  excess  of 
weight  over  one  hundred  pounds  to  a  passenger;  if  such 
carrier  is  a  proprietor  of  a  stage  line,  he  need  not  receive 
and  carry  for  each  passenger  by  such  stage  line,  without 
charge,  more  than  sixty  pounds  of  baggage.  En.  March 
21,  1872.     Am'd.  1877-8,  87;  1905,  615. 

2180.  The  change  consists  in  the  substitution  of  the  word  "need" 
for    "may."      The   present   section    would    seem    to   prohibit 


§§   3186-2236  SUPPLEMENT.  124 

a  carrier  by  stage  from  receiving  more  than  sixty  pounds 
of  luggage,  wherein  it  was  manifestly  intended  only  to  re- 
lieve him,  at  his  election,  from  receiving  a  greater  amount. — 
Code  Commissioner's  Note. 

§  2186.     Supp.  Cal.  Eep.  Cit.     141,  732. 

§  2188.     Supp.  Cal.  Eep.  Cit.     141,  732;   145,  452. 

§  2195.  Liability  of  common  carrier  of  property.  A  com- 
mon carrier  is  liable,  even  in  the  cases  excepted  by  the  last 
section,  if  his  want  of  ordinary  care  exposes  the  property 
to  the  cause  of  the  loss.  En.  March  21,  1872.  Am'd.  1905, 
615. 

2195.  The  change  consists  in  the  substitution  of  the  words  "want 
of  ordinary  care"  for  "ordinary  negligence." — Code  Com- 
missioner's Note. 

§  2215.     Supp.  Cal.  Eep.  Cit.     Subd.  1—138,  609. 

§  2219.     Supp.   Cal.  Eep.   Cit.     141,   61;    142,   69. 

§  2221.     Supp.  Cal.  Eep.  Cit.     144,  318. 

§  2224.     Supp.   Cal.   Eep.   Cit.     141,   60;   141,   62;   142,   69; 
144,    312. 

§  2228.  Supp.  Cal.  Eep.  Cit.     142,  641;   144,  606. 

§  2229.  Supp.  Cal.  Eep.  Cit.     145,  364. 

f  2230.  Supp.  Cal.  Eep.  Cit.     144,  606;  145,  363;  145,  365. 

I  2231.  Supp.    Cal.   Eep.    Cit.     142,    69;    142,   641. 

§  2234.  Supp.   Cal.   Eep.   Cit.     145,   363. 

§  2235.  Supp.  Cal.  Eep.  Cit.     142,  69. 

§  2236.  Obligations  of  trustees.  A  trustee  who  willfully 
and  unnecessarily  mingles  the  trust  property  with  his  own, 
so  as  to  constitute  himself  in  appearance  its  absolute  owner, 
is  liable  for  its  safety  in  all  events,  and  for  the  value  of  its 
use.     En.  March   21,   1872.     Am'd.   1905,  615. 

2236.  The  change  consists  in  the  addition  of  the  words  "and  for 
the  value  of  its  use"  after  "events." — Code  Commissioner's 
Kote. 


125  CIVIL.  CODE.  §§   2239-2334 

§  2239.  Supp.  Cal.  Eep.  Cit.     142,  641. 

§  2250.  Supp.  Cal.  Eep.  Cit.     144,  125;   145,  649. 

§  2252.  Supp.   Cal.   Eep.   Cit.     142,   16. 

§  2258.  Supp.  Cal.  Eep.  Cit.     142,  16. 

§  2267.  Supp.  Cal.  Eep.  Cit.     139,  594. 

§  2273.  Supp.  Cal.  Eep.  Cit.     145,  649, 

§  2295.  Supp.  Cal.  Eep.  Cit.     140,  630. 

§  2299.  Supp.  Cal.  Eep.  Cit.     139,  594. 

§  2300.  Supp.  Cal.  Eep.  Cit.     139,  594;  143,  504;  144,  350. 

§  2307.  Supp.  Cal.  Eep.  Cit.     141,  311;  143,  504. 

§  2309.  Supp.  Cal.  Eep.  Cit.     141,  311;  142,  403;  143,  366. 

§  2310.     Supp.     Cal.    Eep.     Cit.     141,   311;    14^   403;    143, 
366. 

§  2311.     Supp.  Cal.  Eep.  Cit.     144,  112. 

§  2316.     Supp.    Cal.    Eep.    Cit.     141,    705. 

§  2317.     Supp.  Cal.  Eep.  Cit.     141,  705;  143,  504. 

§  2322.  Supp.  Cal.  Eep.  Cit.  145,  363.  Subd.  3-142, 
641. 

§  2330.     Supp.  Cal.  Eep.  Cit.     139,  594;   141,  705. 

§  2332.     Supp.   Cal.   Eep.   Cit.     141,   705. 

§  2334.  Principal  bound  by  acts  of  agent.  A  principal 
is  bound  by  acts  of  his  agent,  under  a  merely  ostensible 
authority,  to  those  persons  only  who  have  in  good  faith,  and 
without  want  of  ordinary  care,  incurred  a  liability  or 
parted  with  value,  upon  the  faith  thereof.  En.  March  21, 
1872.     Am'd.   1905,   616. 


S§   2514-2839  SUPPLEMENT.  126 

2334.  The  change  consists  in  the  substitution  of  the  words  "want 
of  ordinary  care"  for  "ordinary  negligence." — Code  Com- 
missioner's Note. 

Supp.   Cal.  Eep.   Cit.     143,  504, 

§  2514.     Supp.  Cal.  Eep.  Cit.     144,  773. 

§  2541.  Insurance  of  mortgaged  property;  effect  of  acts 
performed  by  mortgagee  for  mortgagor.  Where  a  mortga- 
gor of  property  effects  insurance  in  his  own  name,  provid- 
ing that  the  loss  shall  be  payable  to  the  mortgagee,  or  as- 
signs a  policy  of  insurance  to  the  mortgagee,  the  insurance 
is  deemed  to  be  upon  the  interest  of  the  mortgagor,  who 
does  not  cease  to  be  a  party  to  the  original  contract,  and 
any  act  of  his  which  would  otherwise  avoid  the  insurance 
will  have  the  same  effect,  although  the  property  is  in  the 
hands  of  the  mortgagee,  but  any  act  which,  under  the  con- 
tract of  insurance,  is  to  be  performed  by  the  mortgagor, 
may  be  performed  by  the  mortgagee,  with  the  same  effect  as 
if  it  had  been  performed  by  the  mortgagor.  En.  March  21, 
1872.     Am'd.  1905,  616. 

2541.  The  change  consists  in  the  addition  of  the  clause  following 
"n^rtgagee,"  and  is  designed  to  authorize  a  mortgagee  in 
whose  favor  insurance  is  effected,  to  perform  for  the  mort- 
gagor any  acts  to  be  performed  by  him,  with  the  same 
effect  as  if  performed  by  the  mortgagor.— Code  Commission- 
er's Note. 

§  2611.  Supp.  Cal.  Eep.  Cit.  143,  291. 

§  2814.  Supp.  Cal.  Eep.  Cit.  138,  729;   141,  677. 

§  2815.  Supp.   Cal.   Eep.   Cit.  141,   676. 

§  2819.  Supp.  Cal.  Eep.  Cit.  139,  418;  145,  244. 

§  2822.  Supp.  Cal.  Eep.  Cit.  145,  499. 

§  2831.     Supp.  Cal.  Eep.  Cit.     139,  253;  139,  254;  139,  255; 
145,  499. 

§  2832.     Supp.  Cal.  Eep.  Cit.     139,  418;  145,  498. 

§  2837.     Supp.   Cal.   Eep.   Cit.     138,   730, 

§  2839.     Supp.  Cal.  Eep.  Cit.     139,  418. 


127  CIVIL  CODE.  §§   2840  2913 

§  2840.     Snpp.  fnl.  Ecp.  Cit.     139,    418;    145,    244.     Subd. 
2—144,   96. 

§  2844.     Supp.  Cal.  Eep.  Cit.     141,  677;  145,  244. 

§  2848.     Supp.  Cal.  Eep.  Cit.     139,  49;   145,  499. 

§  2849.     Supp.  Cal.  Eep.  Cit.     139,  49;  139,  50;  139,  52. 

§  2899.     Supp.  Cal.  Eep.  Cit.     139,  352;  139,  361;  141,  12; 
142,  557. 

§  2903.  Lien,  right  to  redeem  from.  Every  person,  hav- 
ing an  interest  in  property  subject  to  a  lien,  has  a  right  to 
redeem  it  from  the  lien,  at  any  time  after  the  claim  is  due, 
and  before  his  right  of  redemption  is  foreclosed,  and,  by 
such  redemption,  becomes  subrogated  to  all  the  benefits  of 
the  lien,  as  against  all  owners  of  other  interests  in  the  prop- 
erty, except  in  so  far  as  he  was  bound  to  make  such  redemp- 
tion for  their  benefit.  En.  March  21,  1S72.  Am'd.  1905, 
617. 

2903.  The  change  consists  in  the  addition  of  the  clause  after  the 
word  ''foreclosed.''  The  de.sign  of  the  amendment  is  to 
state  and  apply  the  rule  of  equity  in  such  cases,  it  being 
feared  that  the  declaration  of  a  similar  rule  in  section 
2904,  and  its  omission  in  this  section  might  lead  to  doubt. 
Code   Commissioner's   Note. 

§  2910.     Supp.  Cal.  Eep.  Cit.     142,  542;  142,  543. 

§  2911.     Supp.   Cal.  Eep.   Cit.     140,  20;   140,  21;   142,  475; 
142,  480;  144,  361;  144,  577;  144,  578. 

§  2913.  Lien  ■when  restoration  extinguishes.  The  volun- 
tary restoration  of  property  to  its  owner  by  the  holder  of  a 
lien  thereon  dependent  upon  possession  extinguishes  the  lien 
as  to  such  property,  unless  otherwise  agreed  by  the  parties, 
and  extinguishes  it,  notwithstanding  any  such  agreement,  as 
to  creditors  of  the  owner  and  persons,  subsequently  acquiring 
a  title  to  the  property,  or  a  lien  thereon,  in  good  faith,  and 
for  value.     En.  March  21,  1872.     Amd.  1873-4,  260;  1905,  617. 

2913.  The  change  consists  in  the  substitution  of  the  word  "value" 
for  "a  good  consideration,"  after  "for." — Code  Commis- 
sioner's note. 


§§   2922-2955  SUPPLEMENT.  128 

§  2922.  Siipp.  Cal.  Eep.  Cit.     140,  GS9;  144,  783. 

§  2924.  Supp.  Cal.  Kep.  Cit.     144,  783. 

§  2925.  Supp.  Cal.  Eep.  Cit.     144,  132. 

§  2930.  Supp.  Cal.  Eep.  Cit.     138,  GS3;  144,  146. 

§  2931.  Supp.  Cal.  Eep.  Cit.     144,  333. 

§  2933.  Supp.  Cal.  Eep.  Cit.     144,  35. 

§  2950.  Supp.   Cal.   Eep.   Cit.     144,  132. 

§  2955.  Chattel  mortgages.  Mortgages  may  be  made  upoa 
the  following  personal  property  and  none  other: 

1.  Locomotives,  engines  and  other  rolling  stock  of  a  rail- 
road. 

2.  Steamboat  machinery,  the  machinery  used  by  machin- 
ists, foundrymen,  and  mechanics. 

3.  Steam  engines  and  boilers. 

4.  Mining  machinery. 

5.  Printing  presses  and  material. 

6.  Professional  libraries. 

7.  Instruments  of  surveyors,  physicians  and  dentists. 

8.  Upholstery,  furniture  and  household  goods. 

9.  Oil  paintings,  pictures  and  works  of  art. 

10.  All  growing  crops,  including  grapes  and  fruit. 

11.  Vessels  of  more  than  five  tons  burden. 

12.  Instruments,  negatives,  furniture  and  fixtures  of  a 
photograph  gallery. 

13.  The  machinery,  casks,  pipes,  tubes  and  utensils  used  in 
the  manufacture  or  storage  of  wine,  fruit  brandy,  fruit  syrup 
or  sugar;  also  wines,  fruit  brandy,  fruit  syrup,  or  sugar,  with, 
the  cooperage  in  which  the  same  are  contained. 

14.  Pianos  and  organs. 

15.  Iron  and  steel  safes. 

16.  Cattle,  horses,  mules,  swine,  sheep,  goats  and  turkeys 
and  the  increase  thereof. 

17.  Harvesters,  threshing  outfits,  hay  presses,  wagons, 
farming  implements,  and  the  equipments  of  a  livery  stable, 
including  buggies,  carriages,  harness,  robes. 

18.  Abstract  systems,  books,  maps,  papers,  and  slips  of 
searchers  of  records. 


129  CIVIL  CODE.  §§   2957  3061 

19.  Eaisins  and  dried  fruits,  cured  or  in  process  of  being 
cured.  Also  all  boxes,  fruit  graders,  drying  trays  and  fruit 
ladders. 

20.  Bees  and  bee-hives,  apiaries  and  apiary  stock,  includ- 
ing frames,  combs  and  extractors,  also  honey  at  apiaries. 

21.  Machinery,  tanks,  stills,  agitators,  leachers,  and  ap- 
paratus iTsed  in  producing  and  refining  petroleum,  asphal- 
tuni,  fuel  oils,  lubricating  oils  and  greases. 

22.  The  bedroom  furniture,  carpets,  tables,  stoves,  ranges, 
cooking  utensils  and  all  furniture  and  equipments  usually 
found  in  a  hotel.  En.  March  21,  1872.  Am'd.  1875-6,  79; 
1877-8,  88;  1887,  5;  1893,  84;  1895,  57;  1397.  95;  1903,  78; 
IS 05,  36. 

§  2957.     Supp.  Cal.  Eep.  Cit.     Subd.  2—143,  6. 

§  2972.     Supp.   Cal.  Eep.   Cit.     142,  544. 

§  2973.  Mortgages  on  personal  property,  validity  of  cer- 
tain. Mortgages  of  personal  property,  other  than  that  men- 
tioned in  section  twenty-nine  hundred  and  fifty-five,  and 
mortgages  not  made  in  conformity  with  the  provisions  of  this 
article,  are  nevertheless  valid  between  the  parties,  their  heirs, 
legatees,  and  personal  representatives,  and  persons  who,  be- 
fore parting  with  value,  have  actual  notice  thereof.  En. 
Stats.  1905,  617. 

2973.  This  section  merely  declares  the  law  already  existing  iipon 
the  subject.  It  is  deemed  proper  to  have  the  same  ex- 
pressed  in    the    Code. — Code    Commissioner's   Note. 

§  2986.  Supp.  Cal.  Eep.  Cit.  144,  633. 

§  2987.  Supp.  Cal.  Eep.  Cit.  144,  633. 

§  3000.  Supp.  Cal.  Eep.  Cit.  144,  333. 

§  3049.  Supp.  Cal.  Eep.   Cit.  143,  438. 

§  3061.     Lien    of   workmen    on    threshing   machines,    etc. 

Every  person  performing  work  or  labor  in,  with,  about,  or 
upon  any  barley  crusher,  threshing  machine  or  engine,  horse- 
power, wagon,  or  other  appliance  thereof,  while  engaged  iu 
•crushing  or  threshing,  has  a  lien  thereon  to  the  extent  of  the 
■value  of  his  services.     Such  lien  extends  for  ten  days  after 


§§   3062,   3063  SUPPLEMENT.  130- 

any  such  person  ceases  such  work  or  labor;  provided,  within 
that  time,  an  action  is  brought  to  recover  the  amount  of  the 
claim.  If  judgment  is  given  in  favor  of  the  plaintiff  in  any 
such  action,  and  it  is  further  found  that  he  is  entitled  to  a 
lien  under  the  provisions  of  this  section,  property  subject 
thereto,  or  so  much  thereof  as  may  be  necessary,  may  be  sold 
to  satisfy  such  judgment;  but  if  several  judgments  have  been 
recovered  against  the  same  property  for  the  enforcement  of 
such  liens,  the  proceeds  of  the  sale  must  be  divided  pro  rata 
among  the  judgment  creditors.     En.  Stats.  1905,  618. 

3061.  The    statute   of   1885,   page   109,    concerning  liens  in   favor  of 

persons   working  on   threshing  machines,   is   codified   in   this 
section. — Code    Commissioner's    Note. 

§  3062.  Lien  of  person  in  charge  of  stallion,  etc.  Every 
owner  or  person  having  in  charge  any  stallion,  jack,  or  bull, 
used  for  propagating  purposes,  has  a  lien  for  the  agreed  price 
of  its  service  upon  any  mare  or  cow  and  upon  the  offspring 
of  such  service,  unless  some  willfully  false  representation 
concerning  the  breeding  or  pedigree  of  such  stallion,  jack,, 
or  bull  has  been  made  or  published  by  the  owner  or  person 
in  charge  thereof,  or  by  some  other  person,  at  the  request 
or  instigation  of  such  owner  or  person  in  charge.  En.  Stats. 
1905,  618. 

3062,  3063,   3064.      The   statute  of  1891,   page  90,   is  codified  in   the 

above   sections. — Code   Commissioner's  Note. 

§  3063.  Claimant  of  lien  must  file  verified  claim;  such 
claim  a  notice  to  subsequent  purchasers.  Every  claimant  of 
a,  lien  provided  for  in  the  preceding  section  must,  within 
ninety  days  after  the  service  on  account  of  which  the  lien 
ig  claimed,  file  in  the  office  of  the  county  recorder  of  the 
county  where  the  mare  or  cow  subject  thereto  is  kept,  a 
verified  claim  containing  a  particular  description  of  the 
mare  or  cow,  the  date  and  place  of  service,  the  name  of  the 
owner  or  reputed  owner  of  such  mare  or  cow,  a  description 
by  name,  or  otherwise,  of  the  stallion,  jack,  or  bull  perform- 
ing the  service,  the  name  of  the  owner  or  person  in  charge 
thereof,  and  the  amount  of  the  lien  claimed.  Such  claim,  so 
filed,  is  notice  to  subsequent  purchasers  and  incumbrancers 
of  such  mare  or  cow  and  of  the  offspring  of  such  service 
for  one  year  after  such  filing.     En.  Stats.  1905,  618. 

•See  note  to  §  3062,  ante. 


131  CIVIL  CODE.  §§    3064-3083 

§  306i.  Action  to  enforce  lien.  An  action  to  enforce  any 
lien  created  under  section  thirty  hundred  and  sixty-two  may 
be  brought  in  any  county  wherein  any  of  the  property  sub- 
ject thereto  may  be  found,  and  the  plaintiff  is  entitled  to  the 
remedies  provided  in  sections  thirty  hundred  and  forty-four 
and  thirty  hundred  and  sixty-five  upon  complying  with  such 
sections,  both  of  which  are  hereby  made  applicable  to  the 
proceedings  in  such  action.     En.  Stats.  1905,  619. 

See  note  to  §  3062,  ante. 

§  3065,  Lien  of  person  who  labors  at  cutting,  etc.,  logs, 
lumber,  etc.  A  person  who  labors  at  cutting,  hauling,  raft- 
ing or  drawing  logs,  bolts,  or  other  timber,  has  a  lien  there- 
on for  the  amount  due  for  his  personal  services,  which  takes 
precedence  of  all  other  claims,  to  continue  for  thirty  days 
after  the  logs,  bolts,  or  other  timber  arrive  at  the  place  of 
<]estination  for  sale  or  manufacture,  while  such  logs,  bolts, 
or  other  timber  are  in  the  county  in  which  such  labor  was 
performed.  T.he  lien  hereby  created  ceases  and  determines 
unless  the  claimant  thereof,  within  twenty  days  from  the 
time  such  labor  is  completed,  brings  suit  to  foreclose  the 
same.  The  plaintiff  in  any  such  suit,  at  the  time  of  issuing 
the  suminons  or  at  any  time  afterwards,  may  have  the  logs, 
bolts,  or  other  timber  upon  which  such  lien  subsists  attached, 
as  provided  in  this  code,  upon  delivering  to  the  clerk  an  atfi- 
davit  by  or  on  behalf  of  the  plaintiff,  showing  that  defendant 
is  indebted  to  the  plaintiff  upon  a  demand  for  labor  per- 
formed, either  in  the  cutting,  hauling,  rafting,  or  drawing 
such  logs,  bolts,  or  other  timber,  and  that  the  sum  for  which 
the  attachment  is  asked  is  an  actual  bona  fide  existing  debt, 
due  and  owing  from  the  defendant  to  the  plaintiff,  and  that 
the  attachment  is  not  sought,  and  the  action  is  not  brought, 
tc  hinder,  delay,  or  defraud  any  creditor  or  creditors  of  the 
defendant.     En.   Stats.  1905,  6i9. 

5065.  So  much  of  the  statute  of  1877-8,  page  747,  as  amended  in 
1880,  page  38,  and  1887,  page  53,  relating  to  loggers' 
liens,  as  is  deemed  necessary  to  be  preserved,  is  codified 
in  the  above  section. — Code  Commissioner's  Note. 

§  3088.     Negotiable    instrument    payable  in  money  only- 

A  negotiable  instrument  must  be  made  payable  in  money  only 
and  without  any  condition  not  certain  of  fulfillment,  except 
Ihat  it  may  provide  for  the  payment  of  attorney's  fees  and 


§§    0094-3131  SUPPLEMENT.  132 

costs  of  suit,  in  caso  suit  be  brought  thereon  to  compel  th© 
payment  thereof.     En.  March  21,  1872.     Am'd.  1905,  96, 

§  3094.  Supp.  Cal.  Eep.  Cit.  145,  84. 

§  3104.  Supp,   Cal.  Eep.   Cit.  139,  667, 

§  3113.  Supp.  Cal.  Eep.  Cit.  139,  580, 

§  3115.  Supp.  Cal.  Eep.  Cit.  139,  580. 

§  3116,  Supp.  Cal.  Eep.  Cit.  IS'9,  574;  139,  580;  139,  584. 

§  3131.  Negotialjle  instrument,  presentment  for  payment, 
how  made.  Presentment  of  a  negotiable  instrument  for  pay- 
ment, when  necessaryj  must  be  made  as  follows,  as  nearly  as 
by  reasonable  diligence  it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder,  or  his 
agent ; 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made;  and  if  not,  then  it  must  be  presented  to 
some  other  person  having  charge  thereof,  or  employed  therein, 
if  one  can  be  found  there; 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there;  and  if  the  place  specified  includes 
more  than  one  house,  then  at  the  place  of  residence,  or  busi- 
ness^ of  the  principal  debtor,  if  it  can  be  found  therein; 

4.  An  instrument  which  does  not  specify  a  place  for  its 
payment  must  be  presented  at  the  place  of  residence,  or  busi- 
ness, of  the  principal  debtor,  or  wherever  he  may  be  found, 
at  the  option  of  the  presentor; 

o.  The  instrument  must  be  presented  upon  the  day  of  its 
maturity,  or,  if  it  is  payable  on  demand,  it  may  be  presented 
upon  any  day.  It  must  be  presented  within  reasonable 
hours;  and  if  it  is  payable  at  a  banking  house,  within  the 
nsual  banking  hours  of  the  vicinity,  but,  by  the  consent  of 
the  person  to  whom  it  should  be  presented,  it  may  be  pre- 
sented at  any  hour  of  the  day; 

6.  If  the  principal  debtor  has  no  place  of  business,  or  if 
his  place  of  business,  or  residence,  cannot,  with  reasonable 
diligence,  be  ascertained,  presentment  for  payment  is  ex- 
cused.    En.  March  21.  1872.     Am'd,  1873-4.  263;  1905.  620, 


133  CIVIL   CODE.  §§    3176-3235 

3131.  The  change  consists  in  the  insertion  of  the  words  "or  his 
agent"  after  "holder."  The  design  of  the  amendment  is 
to  conform  the  section  in  this  respect  to  section  3186.^ 
Code   Commissioner's  Note. 

§  3176.  Bills  of  exchange,  where  payaljle.  A  bill  of  ex- 
change is  payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable. 

2.  Tf  it  specifies  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed. 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  place  of 
residence  or  business  of  the  drawee,  or  wherever  he  may  be 
fovmd.  If  the  drawee  has  no  place  of  business,  or  if  his  place 
of  business  or  residence  cannot,  with  reasonable  diligence,  be 
ascertained,  presentment  for  payment  is  excused,  and  the  bill 
may  be  protested  for  nonpayment.  En.  March  21,  1872. 
Am'd.  1873-4,  264;  1905,  620. 

3176.  The  change  consists  in  the  insertion  of  the  word  "cannot" 
after  "residence,"  to  correct  a  manifest  error.— Code  Com- 
missioner's Note. 

§  3197,     Bills  of  exchange,  promise   to    accept,    effect   of. 

An  unconditional  promise  in  writing,  to  accept  a  bill  of  ex- 
change, is  a  sufficient  acceptance  thereof,  in  favor  of  every 
person  who  upon  the  faith  thereof  has  taken  the  bill  for 
value.     En.  March  21,  1872.     Am'd.  1905,  621. 

3197.  The  change  consists  in  the  omission  of  the  words  "or  other 
good  consideration,''  as  they  occur  after  "value.''  The 
presence  of  these  words  implies  that  a  consideration  other 
than  "for  value"  may  support  a  promise  in  writing  to  ac- 
cept a  bill.  Such  is  not  intended  to  be  the  law. — Code 
Commissioner's  Note. 

§  3235.  Foreign  bills  of  exchange,  rate  of  damages.  Dam- 
ages are  allowed  under  the  last  section  upon  bills  drawn  upon 
any  person: 

1.  If  drawn  upon  a  person  in  this  state,  two  dollars  upon 
each  one  hundred  dollars  of  the  principal  sum  specified  in  the 
bill; 

2.  If  drawn  upon  a  person  out  of  this  state,  five  dollars 
upon  each  one  hundred  dollars  of  the  principal  sum  specified 
in  the  bill; 

3.  If  drawn  upon  a  person  in  any  pla&e  in  a  foreign  coun- 
try, fifteen  dollars  upon  each  one  hundred  dollars  of  the 
principal  sum  specified  in  the  bill.  En.  March  21,  1872. 
Am'd.  1905,  621. 

Civil  Code— 12 


§§   3287-3346a  SUPPLEMENT.  134 

3235.  The  change  consists  in  the  substitution  of  the  word  "a"  for 
"any"  before  "person";  in  the  omission  of  the  words 
"but  in  any  of  the  other  states  west  of  the  Kocl^y  Moun- 
tains" after  "state";  in  the  omission  of  tlie  tliird  sub- 
division; and  in  the  renumbering  of  the  fourtli  subdivision 
rendered  necessary  thereby.  As  it  now  stands  the  section 
divides  for  its  purposes  that  part  of  the  United  States 
not  included  witliin  this  state,  into  two  parts,  viz. :  the 
states  west,  and  the  states  east,  of  the  Roclcy  Mountains, 
thus  apparently  ignoring  the  states  now  existing  situated 
partly  on  each  side  of  those  mountains.  It  has  seemed  best 
to  abolish  the  distinction  altogether  and  to  provide  a  uni- 
form rate  of  damage  for  all  the  states,  irrespective  of  their 
position  with  reference  to  those  mouutaius. — Code  Commis- 
sioner's Note. 

§  3287.     Supp.  Cal.  Eep.  Cit.     141,  697. 

§  3294.  Exemplary  damages,  in  what  cases  allowed.  In 
an  action  for  the  breach  of  an  obligation  not  arising  from 
contract,  where  the  defendant  has  been  guilty  of  oppres- 
sion, fraud,  or  malice,  express  or  implied,  the  plaintiff,  in 
addition  to  the  actual  damages,  may  recover  damages  for 
the  sake  of  example  and  by  way  of  punishing  the  defendant. 
En.  March  21,  1872.     Am'd.  1905,  621. 

3294.  The  change  consists  in  the  substitution  of  the  words  "ex- 
press or  implied"  for  "actual  or  presumed,"  and  in  the 
substitution  of  the  words  "the  plaintiff,  in  addition  to  the 
actual  damages,  may  recover,"  in  place  of  the  words  "the 
jurors,  in  addition  to  actual  damages,  may  give."  As  the 
section  now  stands  it  appears  to  apply  to  jury  trials  only 
This,  of  course,  was  not  the  intention  of  the  legislature. — 
Code  Commissioner's  Note. 
Supp.  Cal.  Kep.  Cit.     139,  518;  139,  021;  140,  363;  140,  364; 

142,  260;  142,  261. 

§  3300.     Supp.  Cal.  Kep.  Cit.     140,  342. 
§  3301.     Supp.  Cal.  Kep.  Cit.     140,  342. 

§  3311.     Supp.   Cal.  Kep.   Cit.     Subd.   1—143,  438.     Subd. 

2—144,  84. 

§  3333.     Supp.  Cal.  Rep.  Cit.     139,  518;  139,  521;  141,  613. 

§  3346.     Supp.  Cal.  Rep.  Cit.     139,  560. 

§  3346(/.     Damages  for  firing  woods.     Every  person  negli- 
gently setting  fire  to  his  own  woods,  or  negligently  suffering 


135  CIVIL  CODE.  §§   3353-3442 

any  fire  to  extend  beyond  his  own  land,  is  liable  in  treble 
damages  to  the  party  injured.     En.  Stats.  1905,  621. 

3346a.  The  new  section  incorporates  into  this  Code  the  principle 
now  declared  in  section  3344  of  the  Political  Code. — Code 
Commissioner's  Note. 

§  3353.     Supp.  Cal.  Eep.  Cit.     140,  652. 

§  3360.     Supp.  Cal.  Eep.  Cit.     139,  520. 

§  3366.  Specific  relief,  etc.,  when  allowed.  Specific  or 
preventive  relief  may  be  given  as  provided  by  the  laws  of 
this  state.     En.  March  21,  1872.     Am'd.  1905,  622. 

3366.  The  change  consists  in  the  substitution  of  the  words  "as 
provided  by  the  laws  of  this  state,"  in  place  of  the  words 
"in  the  cases  siiecified  in  this  title  and  in  no  others." 
The  purpose  is  to  enlarge  the  scope  of  the  section.— Code 
Commissioner's  Note. 

Supp.  Cal.  Eep.  Cit.     139,  474. 

§  3367.  Supp.  Cal.  Eep.  Cit.  Subd.  2—142,  46. 

S  3369.  Supp.  Cal.  Eep.  Cit.  138,  66'5. 

§  3386.  Supp.  Cal.  Eep.  Cit.  142,  346;   144,  533. 

§  3390.  Supp.  Cal,  Eep.  Cit.  Subd.  1—140,  497. 

§  3391.  Supp.  Cal.  Eep.  Cit.  Subd.  2—142,  467;  144,  535. 

§  3399.  Supp.  Cal.  Eep.  Cit.  144,  454. 

§  3406.  Supp.  Cal.  Eep.  Cit.  141,  63.     Subd.  1—138,  672. 

§  3423.     Supp.  Cal.  Eep.  Cit.     Subd.  2—139,  474;  139,  475; 
IS'9,  476;  139,  478. 

§  3432.     Supp.  Cal.  Eep.  Cit.     139,  366;  140,  399. 

§  3433.     Supp.  Cal.  Eep.  Cit.     159,  352;  139,  361;  141,  12. 

§  3440.     Supp.  Cal.  Eep.  Cit.     143,  283. 

§  3442.     Supp.  Cal.  Eep.  Cit.     140,  619;  140,  620;  140,  623; 
141,  627;  144,  711;  145,  226. 


§§   3449-3513  SUPPLEMENT.  136 

§  3449.     Supp.  Cal.  Eep.  Cit.     139,  367;  141,  513;  144,  516. 

§  3451.  Assignments  for  benefit  of  creditors,  certain  trans- 
fers not  affected.  The  provisions  of  this  title  do  not  prevent 
a  person  residinor  in  another  state  or  country  from  making 
there,  in  good  faith,  and  without  intent  to  evade  the  laws  of 
this  state,  a  transfer  of  property  situated  within  it;  but  such 
person  cannot  make  a  general  assignment  of  property  situ- 
ated in  this  state  for  the  satisfaction  of  all  his  creditors,  ex- 
cept as  in  this  title  provided;  nor  do  the  provisions  of  this 
title  affect  the  power  of  a  person,  although  insolvent,  and 
■whether  residing  within  or  without  this  state,  to  transfer 
property  in  this  state,  in  good  faith  to  a  particular  creditor, 
or  creditors,  or  to  some  other  person  or  persons  in  trust  for 
such  particular  creditor  or  creditors  fOr  the  purpose  of  pay- 
ing or  securing  the  whole  or  part  of  a  debt  owing  to  such 
creditor  or  creditors,  whether  in  his  or  their  own  right  or 
otherwise.     En.  March  21,  1S72.     Am'd.  1SS9,  82;  1905,  622. 

3451.  The  change  consists  in  the  insertion  of  the  words  "or  credi- 
tors or  to  some  other  person  or  persons  in  trust  for  such 
particular  creditor  or  creditors,"  after  "creditor."  The 
rule  stated  in  the  section  as  amended  by  the  addition  of 
the  clause  above  quoted  is  the  rule  heretofore  enforced  in 
this  state  (Lawrence  v.  Neff,  41  Cal.  566;  Hendlev  v.  Pfis- 
ter,  39  Cal.  283;  Priest  v.  Brown,  100  Cal.  626);  but 
some  doubt  has  been  cast  upon  the  sub.iect  by  the  later 
case  of  Sabaehi  v.  Chase,  108  Cal.  81. — Code  Commission- 
er's   Note. 

Supp.  Cal.  Eep.  Cit.     139,  366. 

§  3458.  Supp.  Cal.  Eep.  Cit.     144,  515. 

§  3459.  Supp.  Cal.  Eep.  Cit.     144,  515. 

§  3468.  Supp.  Cal.  Eep.  Cit.     144,  517. 

§  3473.  Supp.  Cal.  Eep.  Cit.     139,  367. 

§  3479.  Supp.  Cal.  Eep.  Cit.     144,  136. 

§  3493.  Supp.  Cal.  Eep.  Cit.     141,  363;  144,  139. 

§  3510.  Supp.  Cal.  Eep.  Cit.     141,  123. 

§  3513.  Supp.  Cal.  Eep.  Cit.     144,  655. 


137  CIVIL  CODE.  §§    3515-3543 

§  3515.  Supp.  Cal.  Eep.  Cit.  143,  004. 

§  3519.  Supp.  Cal.  Eep.  Cit.  143,  504;   145,  594. 

§  3521.  Supp.  Cal.  Rep.  Cit.  138,  622;  141,  227. 

§  3522.  Supp.  Cal.  Eep.  Cit.  142,  516;  145,  473. 

§  3532.  Supp.  Cal.  Eep.  Cit.  144,  669. 

§  3540.  Supp.  Cal.  Eep.  Cit.  142,  517. 

§  3541.  Supp,  Cal.  Eep.  Cit.  141,  102. 

§  3543.  Supp.  Cal.  Eep.  Cit.  143,  504. 


INDEX. 


ABDUCTION  of  persons  in  certain  relations  forbidden,  §  49, 
ACCIDENT     INSURANCE     COMPANIES:     See     Insurance 
(Corporations;     Mutual    Insurance  on    Assessment 
Plan. 
ACKNOWLEDGMENTS:    See   Eegistration. 

Action   to   obtain  proof   of  instrument,   §   1203. 
Affiant  to  be  known  to  officer,  §   1185. 
Certificate,  defective,  action  to  correct,  §   1202. 
Corporation,    acknowledgment,    affiant   to   be    known    to 

officer,   §   1185. 
Corporation,     acknowledgment      of      instrument     by,     § 

1161. 
Corporation,  form  of,  §  1190. 
What  officers  may  take,  §  1181, 
ACTIONS    to  obtain  judgment  proving  instrument,   §   1203. 
ADOPTION,  proceedings  for,  §§  226,  227. 
ADVANCEMENT,  death  of  person  receiving,  effect  on  heirs, 
§   1399, 
Effect   of   on   distributive   share,   §§    1395,   1399. 
AGENCY.     Ostensible  authority,  principal  not  liable,  when, 

§  2334. 
ALIMONY:  See  Divorce. 
AMUSEMENTS:   See  Theaters. 

All   citizens   to    have    equal    rights    in   public    places,    § 

51. 
Denial  of  equal  rights,  punishment,   §  52. 
Persons  may  be  excluded  from  when,  §  53. 
Eefusal  of  admission  unlawful,  §  53. 
ANIMALS,    cruelty    to:     See     Societies    for    Prevention   of 
Cruelty  to  Children  and  Animals. 
Propagation,  lien  of  owner  of  animal  usod  for,  §  3062. 
Saver  of,  duty  of,  §   1865. 
Saver  of,  publication  of  list  by,  §  1871. 
(139) 


140  ANIMALS-APPRENTICESHIP. 

Saver   of,   appraisement   and  preparation    and   filing   of 
list,  §  1S65. 

Saver  of,  not  to  charge  compensation.  §  1S65. 

Saver   of,  penalty  for  failure   to   comply   with    statute 
or  surrender  property,  §   1S71. 

Savor  of.  title  vests  in  after  what  time,  §   1S71. 
ANNUITY  INSURANCE:  See  Mutual  Insurance  on  Asscss- 

niont  Plan. 
APPRENTICESHIP.     Act  relating  to  masters  and  appren- 
tices, §  '264,  note. 

Age  to  which  minor  may  be  bound,  §  264. 

Breach   of   covenants,   action   lies  within   what   time,   § 
273. 

Breach  of  covenant,  damages,  how   applied,   §   273, 

Breach  of  covenant,  master  liable  for,  §  273. 

Death  of  master,  effect  of,  §  266. 

Discharge    of    apprentice,    power    of    superior  court,   § 
272. 

Enticing   apprentice,   liability   for,   §    275. 

Fees,    none    to    be    charged   where    homeless    minor    ap- 
prenticed,  §   268. 

Harboring  runaway  apprentice,  liability  for,  §  275. 

Hearing  of  complaints  of  apprentices,  §  271. 

Homeless  minor,  no  fee  to  be  charged,  §  268. 

Homeless    minor,    provision    in    indenture    as    to    educa- 
tion, clothing,  etc.,  §  268. 

Homeless  minors,  superior  court  may  bind,  §  268. 

Homeless    minors,    who    may    institute    proceedings,     § 
26S. 

Illegitimate  child,  mother  alone  can  bind,  §  265. 

Hlegitimate    child,    mother    marrying,    right  to  bind,  § 
265. 

Indenture,   delivering  and  filing  of,   §   266. 

Indenture,  effect  of  death  of  master,  §  266. 

Indenture,  how  executed,  §  266. 

Indenture  not   complying  with  statute  is  void,   §   266. 

Indenture  of  homeless    minor,    provision    as    to   educa- 
tion, clothing,  etc.,  §  268. 

Indenture,  what  to  contain,  §  266. 

Jurv  trial   on   incapacity   of  father   where   mother   con- 
sents,  §   267. 

Jury  trial,  who  to  pay  costs  of,  §  267. 

Master  to  keep  apprentice  within  state,  §  269. 

Minor  mav  bind  himself  when,  §  265. 


APPRENTICESHIP-AUTOMOBILES.  141 

Minors  who  may  be  bound  as,  §  2G4. 

Miabehavior  by  apprentice,  liability  for,  §  274. 

Misbehavior  by  a^jprenticc,  proceedings   against,   §   274. 

Misbehavior    by    apjjrentice,    proceedings    against,    costs 
of,  §  274. 

Money,  clothes,  etc.,  delivery  to  apprentice,  §  269. 

Money,   clothes,    etc.,  provision    as   to    in   indenture,     § 
268. 

Mother,  consent  of,  jurv  trial  on  incapacity  of  husband, 
§  267. 

Mother  marrying,  right  of  to  bind,  §  26.5. 

Protection  of  apprentice,  duty  as  to,  §  270, 

Kelease  of  master  removing  from  state  or  quitting  busi- 
ness, §  276. 

Superior  court  may  bind  homeless  minors,  §   268. 

Superior  court,  power  to  discharge  apprentice,   §   272. 

Suijerior  court  to  defend  apprentice  from  mistreatment, 
§   270. 

Superior    court  to    hear    complaints    of    apprentices,    § 
271. 

Treatment  of  apprentice,  duty  to  inquire  into,  §  270. 

Who  may  be  bound  as,  §  264. 

Who  may  Ijind  minor,  SS  265,  268. 
ARTICLES  OF  INCORPORATION:   See  Corporations;  For- 
eign   Cori)oralions. 
ASSESSMENT  INSURANCE:  See  Mutual  Insurance  on  As- 
sessment Plan. 
ASSIGNMENT,    lease,    of,    rights    of    landlord    against    as- 
signee, §  822. 
ASSIGNMENT   FOR    BENEFIT     OF     CREDITORS.     Non- 
residents,   general   assignment   by   to    conform   to 
our  statute,   §   3451. 

Nonresident,    power    to    transfer    property    in    state,   § 
3451. 

Preferences,  right  to  make,  §  3451. 
ASSOCIATIONS:   See  Co-operative  Business  Associations. 
ATTORNEY.     Negotiable    instrument    may    provide    for    at- 
torney's fee,  §   3088. 
ATTORNEY  GENERAL.     Inquiry  into  right  of  co-operative 
business  association  to  do  business,  §  653/i'. 

Proceedings  where  succession  to  estate  not  claimed,  §§ 
1405,    1406. 
AUTOMOBILES,  franchises  for  roads  for,  §  524. 


142  BAGGAGE— CARRIERS   OF   TERSOXS. 

BAGGAGE,   nniount  of,  to  be  carried  for  each  passenger,  § 

2180. 
BAILMENTS:    See  Warehousemen. 

Hiring:   See  Hiring. 
BANKS:    See   Savings   and  Loan   Corporations. 
BENEFIT  SOCIETIES:   See  Mutual  Benefit  and  Life  Asso- 
ciations;   Mutual   Insurance   on   Assessment   Plan. 
Not    governed    by   laws    relating   to    mutual   assessment 
corporations,    §    453/). 
BENEVOLENT     CORPORATIONS:     See  Eeligious,     Social 

and  Benevolent  Corporations. 
BILLS  AND  NOTES:   See  Negotiable  Instruments. 

Warehouse  receipts:    See  Warehousemen. 
BILLS  OF  EXCHANGE:   See  Negotiable  Instruments. 
BOARDS    OF    TRADE:  See    title  "Chambers  of  Commerce, 

Boards  of  Trade  and  Mechanics'  Institutes." 
BRIDGE,    FERRY,    WHARF,    CHUTE    AND    PIER     COR- 
PORATIONS.    Franchise,  when   forfeited,   §    529. 
Nonuser,  ceasing  to  be  corporation  because  of,  §  529. 
Report,  failure  to  make,  penalty  for,  §  530. 
Report,  failure  to  make,  proceedings  in  case  of,  §  530. 
Tolls,  not  to  be  taken  until  authority  granted,  §  528. 
Report,  publication  of,  §  530. 
Report  to  be  made  annually,  §   530. 
Report,  what  to  show,   §   530. 
Report,  who  to  make,  §  530. 
BUILDING  CORPORATIONS:   See  Land  and  Building  Cor- 
porations. 
BUSINESS  ASSOCIATIONS:  See  Co-operative  Business  As- 
sociations;   Co-operative   Business   Corporations. 
BUSINESS     CORPORATIONS:    See    Co-operative    Business 

Corporations. 
BY-LAWS:   See  Corporations. 

CARRIERS:  See  Carriers  of  Goods;  Carriers  of  Messages; 
Carriers  of  Passengers;  Railroad  Corporations; 
Telegraph  Companies;  Telephone  Companies. 

CARRIERS  OF  GOODS,  exemptions  do  not  excuse  if  negli- 
gent, §  2195. 

CARRIERS  OF  MESSAGES.     Duty  to   deliver,   §   2161. 

CARRIERS  OF  PERSONS.  Baggage,  amount  of  to  be  car- 
ried, §  2180. 


CHAMBERS    OP    COMMERCE,    ETC-CIIINEST!;.  143 

CHAMBERS  OF  COMMERCE,  BOARDS  OF  TRADE,  AJSTD 

MECHANICS'  INSTITUTES.     Act  for  formation 
of,  §§  591,  note. 

Articles  of  incorporation,  execution  and  filing,  §  591. 

Assessments,  manner  of  levving  and  collecting  §§  592c, 
592d. 

Assessments  may  be  levied  and  collected,  §  592d. 

Business,  not  to  engage  in,  §  591. 

By-laws,  force  and  effect  of,  §  592e. 

By-laws,  penalty  for  violation  of,  §  592c. 

By-laws,  what  to  prescribe,  §  592c. 

Capital  stock,  may  have,  when,  §  592. 

Directors,  powers  which  may  be    conferred  on,  §  592fif. 

Executive   committee,  powers  which  may  be   conferred 
on,  §  592«. 

Formation  of,  authorized,  §  591. 

Formation  of,  manner  of,  §  591. 

Formation  of,  number  of  persons  who  may  form,  §  591. 

Formation  of,  when  complete,  §  591. 

Members,   expulsion   and   admission   of,   §   592c. 

Meetings,  how  called  and  conducted,   §  592c. 

Meetings,  quorum,  §  592c. 

Officers,    agents   and   servants,    appointment   and   tenure 
of    office,    §    592c. 

Organization  of,  §  591. 

Pre-existing  corporations   entitled  to  benefit  of   code,   § 
592c. 

Pre-existing  corporations  how  become  entitled  to  bene- 
fit of  code,  §  592c. 

Powers  and  liabilities  of,  §  591. 

Power  to  lease,  acquire  and  sell  property,  §  5926. 

Stock,  certificates  of,  right  to  issue,  §  592. 

Stockholders,  rights,  privileges  and  obligations  of.  §  592. 

Trustees,  powers  which  may  be  conferred  on,  §  592a. 
CHANGE  OF  NAME:  See  Names. 

CHATTEL  MORTGAGES,  made  upon  property  not  author- 
ized,  effect  of,  §   2973. 

May  be  made  upon  what  property,  §  2955. 

Not  conforming  to  statute,  effect  of,  §   2973. 
CHILDREN:   See  Infancy;  Parent  and  Child. 

Cruelty  to.  societies  to  prevent:   See  Societies  for  Pre- 
vention  of  Cruelty  to   Children  and   Animals. 
CHINESE,  marriage  between,  and  whites  forbidden,  §   60. 


144  CHUTE    CORPORATIONS-CONVEYANOES. 

CHUTE  CORPORATIONS:  See  Bridge,  Ferry,  Wharf,  Chute 

and   Pier  Corporations. 
CITIZENS.     All  to  have  equal  rights  in  public  places,  §  51. 
CIVIL  RIGHTS.     All  citizens  to  have  equal  rights  in  pub- 
lic places,  §  51. 
Denial  of  equal  riglits  to  all  citizens,  punishment,  §  52. 
Refusal  of  admission  to  place   of  amusement   unlawful, 

§  53. 
Refusal  of  admission  to  places  of  amusement,  damages, 
§   54. 
CLERK  OF  COURT,  acknowledgments,  may  take,  §  1181. 
COMMERCE,    chambers   of:    See   title   "Chambers    of   Com- 
merce,   Board    of    Trade    and    Mechanics'    Insti- 
tutes. '  ■' 
COMMON   CARRIERS:   See   Carriers   of   Goods;   Carriers   of 
Persons;   Carriers  of  Messages;   Railroad  Corpora- 
tions;    Telegraph     Companies;     Telephone     Com- 
panies. 
CONFLICT   OF   LAW.     Law   governing  validity   and   inter- 
pretation of  wills,  §   1376. 
CONSOLIDATION,  mining  corporations,  of,  §  587«. 
CONSTRUCTION:  See  Words  and  Phrases. 
CONTRACTS,   specific   performance,   when   granted,    §    3366. 
Statute  of  frauds:  See  Statute  of  Frauds. 
Writing     supersedes      prior     negotiations     and     stipula- 
tions,   §    1625. 
CONVEYANCES:    See   Deeds. 

CO-OPERATIVE   BUSINESS   ASSOCIATIONS:    See    Co-op- 
erative Business  Corporations. 
Act  providing  for  incorporation,  operation  and  manage- 
ment of,  §  6536,  note. 
Articles  of  association  to  be  prepared,   §   653^/. 
Articles   of   association,  what  to   state,   §   653(/. 
Articles  of  association,  subscribing  and  acknowledging, 

§   653d. 
Articles   of   association,  where   to  be   filed,   §   653(7. 
Attorney  eeneral  may  inquire  into  right  to  do  business, 

§  653/w 
By-laws  to  be  adopted  within  forty  days,   §   653e. 
By-laws,  majority  of  members  to  adopt,  §  653t'. 
By-laws,  amendment  of,  §  653f. 

By-laws   and  amendments,   to   be   recorded   and   kept   iu 
office,    §   653e. 


CO-OPERATIVE     BUSINESS     ASSOCIATIONS.  145 

By-laws,   certified   copy  to   be   filed   with   county   clerk, 
§    653e. 

By-laws  to  be  written  in  book  and  subscribed  by  mem- 
bers, §  653e. 

By-laws  to  provide  amount  of  indebtedness  that  can  be 
incurred,    §    653e. 

By-laws,  what  may  provide,  §§  653fl,  653e. 

Capital  stock,  to  have  none,  §  653&. 

Certificate,  when  to   be   issued  by   Secretary   of   State, 
§   653d. 

Consolidation  of  authorized,  §  653i. 

Consolidation  of,  agreement  of,  signing  and  acknowledg- 
ing, §  653i. 

Consolidation  of,  agreement  of,  what  to  state,  §  653i. 

Consolidation  of,  agreement  for,  filing  and  recording  of 
and  fees  for,  §  653 i. 

Consolidation  of,  effect  of,  §  653!. 

Debts,  property  subject  to  seizure  for,   §   653f. 

Dissolution  and  winding  up   of,   §   653/. 

Elections,  each  member  entitled  to  one  vote,  §   653c. 

Formation,  five  or  more  persons  may  form,  §  6536. 

Formation,  purpose  for  which  may  be  formed,  §  653&. 

Indebtedness,   by-laws   to   provide   amount   that   can   be 
incurred,   §   653c. 

Indebtedness,    liability   of   members,    §    653c. 

Insolvency,  compelling  payment  of  unpaid  dues  and  in- 
stallments, §  653c. 

Members,  liability  for  indebtedness,  §  653c. 

Members,  payment  of  unpaid  dues  and  installments  on 
insolvency,   §   653c. 

Members,  rights  of  are  equal,  §  653c. 

Members,  rights  of  association  where  interest  sold  un- 
der execution,  §  653f. 

Members,  rights  of  purchasers  of  interest  of  under  exe- 
cution, §   653f. 

Membership   certificates,   assignment  and  transfer  of,   § 
653J). 

Membership   certificates    to   be   issued    to    members,     § 
6536. 

Membership,  who   eligible  to,   §   653c. 

Powers  of  enumerated,  §  6537;. 

Profits,   adding   to   the   funds,    §    653c. 

Profits,  division  of,  time  and  manner  of,  §  653e. 
Civil  Code— 13 


146  CO  OPERATIVE  BUSINESS  ASSOCIATIONS. 

Purpose  for  which  may  be  formed,  §  653/^ 

Purpose   of,  how  altered,   modified   or   enlarged,   §   653.7. 

Quo  warranto  to  inquire  into  right  to  do  business,  § 
653/r. 

Eeceiver  when  only  can  be  appointed  for,  §  653y. 

Eights  where  interest  of  member  sold  under  execution, 
§   653A 

What   corporations   not   affected   by   provisions   relating 
to,  §  653/. 
CO-OPERATIVE  BUSINESS  CORPORATIONS:    See  Co-op- 
erative Business   Associations. 

Profits,  amount  to  be  divided,  by-laws  may  provide,  § 
653ff. 

Profits,  manner  of  division,  by-laws  may  provide,  §  653o. 

Purposes  for  which  may  be  formed,  §  653a.. 
CORPORATIONS,    benevolent:    See    Religious,    Social,    and 
Benevolent  Corporations. 

Boards  of  trade:  See  title  "Chambers  of  Commerce, 
Boards   of   Trade   and   Mechanics'   Institutes." 

Bridge  corporations:  See  Bridge,  Perry,  Wharf,  Chute 
or  Pier   Corporations. 

Chambers  of  commerce:  See  title  "Chambers  of  Com- 
merce, Boards  of  Trade  and  Mechanics'  Insti- 
tutes." 

Chute  corporations:  See  Bridge,  Ferry,  Wharf,  Chute  or 
Pier  Corporations. 

Co-operative  business  corporations:  See  Co-operative 
Business  Corporations. 

Cruelty  to  animals,  societies  to  prevent:  See  Societies  to 
Prevent  Cruelty  to  Children  and  Animals. 

Cruelty  to  children,  societies  to  prevent:  See  Societies 
for  Prevention  of  Cruelty  to  Children  and  Ani- 
mals. 

Electric:   See  Lighting  Corporations. 

Ferry  corporations:  See  Bridge,  Ferry,  Wharf,  Chute  or 
Pier   Corporations. 

Foreign  corporations:   See  Foreign  Corporations. 

Gas:   See  Lighting  Corporations. 

Insurance:  See  Insurance  Corporations. 

Land  and  building  corporations:  See  Land  and  Build- 
ing Corporations. 

Land  and  water  corporations:  See  Land  and  Water  Cor- 
porations. 


CORPORATIONS.  147 

Mechanics'  institutes:  See  title  "Chambers  of  Com- 
merce, Boards  of  Trade  and  Mechanics'  Insti- 
tutes." 

Mining:    See   Mining   Corporations. 

Mutual,  benefit  and  life  associations:  See  Mutual  Bene- 
fit and  Life  Associations. 

Pier  corporations:  See  Bridge,  Ferry,  Wharf,  Chute  or 
Pier   Corporations. 

Eailroad  corporations:    See  Eailroad   Corporations. 

Keligious:  See  Eeligious,  Social  and  Benevolent  Cor- 
porations. 

Savings  and  loan  corporations:  See  Savings  and  Loan 
Corporations. 

Social:  See  Eeligious,  Social  and  Benevolent  Corpora- 
tions. 

Telegraph  corporations:  See  Telegraph  and  Telephone 
Corporations. 

Telephone  corporations:  See  Telegraph  and  Telephone 
Corporations. 

Wagon  road  corporations:  See  Wagon  Eoad  Corpora- 
tions. 

Water  corporations:  See  Water  Corporations. 

Wharf  corporations:  See  Bridge,  Ferry,  Wharf,  Chute 
or  Pier  Corporations. 

Acknowledgment  of  instrument  by,  §  1161. 

Acknowledgment,  affiant  to  be  known  to  officer,  §  1185. 

Acknowledgment,  form  of,  §  1190. 

Amendment  of  law,  effect  on  rights  against,  §§  403,  404. 

Amendment  of  law,  power  of  reserved,  §  403,  404. 

Articles,  amendment,  defects  not  curable  by,  §  362. 

Articles,  amendment,  effect  of,  §  362. 

Articles,  amendment,  filing  amendment,  §  362. 

Articles,  amendment,  limitations  on  right  of,  §  362. 

Articles,  amendment,  mode  of,   §  362. 

Articles,  amendment,  notice  of  to  be  published  if  requi- 
site assent  not  obtained,  §  362. 

Articles,  amendment,  right  of,  §  362. 

Articles,  copies  filed  have  same  effect  in  evidence  as  or- 
iginals,  §   299. 

Articles,  copies  to  be  filed  in  counties  where  property 
held,  §  299. 

Articles,  failure  to  file,  effect  of,  §  299. 

Articles,  majority  of  subscribers  to  be  residents,  §  292. 

Articles,  subscribing  and  acknowledging,   §  292. 


148  CORPORATIONS. 

Articles,  time  of  filing,  §  299. 

Articles,  what  to  set  forth,  §  290. 

By-laws,  amendment  of,  §  304. 

By-laws,  book  of,  keeping  of  and  right  to  inspect,  §  304. 

By-laws,  certifying,  §  304. 

By-laws,  copying  in  book  of  by-laws,  §  304. 

By-laws,  delegating  power  over  to  directors,  §  304. 

By-laws,  repeal  of,  §  304. 

Capital  stock,  division  of  on  dissolution  or  expiration,  § 
309. 

Capital  stock,  liability  of  directors  reducing,  withdraw- 
ing or  paying  out,  §  309. 

Capital  stock,  not  to  be  increased  or  reduced,  §  309. 

Capital  stock,  not  to  be  divided,  withdrawn  or  paid  to 
stockholders,  §  309. 

Certificate  of  place  where  summons  may  be  served,  § 
1163. 

Certificate  of  place  where  summons  may  be  served,  affi- 
davit on  change  of  residence,  §  1163. 

Control  of  where  no  capital  stock,  §  3'05. 

Corporators,  majority  must  be  residents,  §  28'5. 

Debt,  liability  of  director  creating  excessive,  §  309. 

Debts,  limitation  on  power  to  create,  §  309. 

Directors,  number  of,  §  305. 

Directors,  number  of,  where  formed  to  erect  and  main- 
tain halls,  §  290. 

Directors,  number  and  term  of,  in  social  corporations,  § 
290. 

Directors,  increase  and  decrease  in  number  of,  §  290. 

Directors,  not  to  be  less  than  three,  §  290. 

Directors,  majority  to  be  residents,  §  305. 

Directors,  election,  notice  of,  §  302. 

Directors,  election  of  new  board,  §  310. 

Directors,  to  be  elected  annually,  §  302. 

Directors,  election,  time  of  where  no  provision  in  by- 
laws, §  302. 

Directors,  amount  of  stock  to  be  held  by  fixed  by  by- 
laws, §  305. 

Directors,  liability  for  creating  excessive  debt,  §  309. 

Directors,  liability  for  reducing,  paying  out  or  with- 
drawing capital  stock,  §  309. 

Directors,  limitation  of  action  for  creating  excessive 
debt,  §  309. 


CORPORATIONS.  149 

Directors,  no  limitation  of  action  for  withdrawing  or  re- 
ducing capital  stock,  §   S'09, 

Directors,  meetings,  quorum  to  be  present,  §  305. 

Directors,  removal  of,  §  310. 

Directors  to  be  members  where  no  capital  stock,  §  305. 

Directors  to  be  stockholders,  §  305. 

Directors,  to  conduct  and  control  business  and  property, 
§  305. 

Directors,  vacancy,  how  filled,  §  305. 

Dissolution,  directors   or  managers  are  trustees,   §   400. 

Dissolution,  directors  and  managers,  powers  of,  §  400. 

Dissolution  of,  legislature  reserves  right  of,  §§  403,  404. 

Dissolution  of,  by  legislative  act,  effect  on  rights 
against,  §§  403,  404. 

Dividends  on  stock  in  name  of  married  woman,  to  whom 
paid,  §  525. 

Dividends,  to  be  from  surplus  profits  only,  §  309. 

Election,  irregular,  effect  of,  §  312. 

Elections,  complaints  against,  hearing  and  notice  of,  | 
315. 

Elections,  complaints  against,  power  of  superior  court,  § 
315. 

Elections,  corporations  not  for  profit,  by-laws  to  pro- 
vide  quorum,  §  312. 

Election,  majority  of  stock  or  members  to  bo  repre- 
sented, §  312. 

Elections,  postponement  of,  §  314. 

Elections,  proceedings  where  not  held  or  postponed,  § 
314. 

Elections,  voter  to  be  stockholder  or  member  ten  days 
before,  §  312. 

Execution  against,  franchise  may  be  sold,  §  388. 

Execution,  sale  of  franchise,  duties  and  liabilities,  § 
391. 

Execution,  sale  of  franchise,  redemption,  §  392. 

Execution,  sale  of  franchise,  where  made,  §  393. 

Extension  of   existence,  filing  certificate,   §   401. 

Extension  of  existence,  proceedings  for,  §  401. 

Extension  of  existence,  right  of,   §  401. 

Franchise  may  be  sold  on  execution  against,  §  388. 

Franchise,  sale  of  under  execution,  duties  and  liabili- 
ties,   §    391. 

Franchise,  sale  under  execution,  where  made,  §  393. 

Franchise,  sold  under  execution,  redemption  of,  §  392. 


150  CORPORATIONS. 

Halls,  to  erect  and  manage,  number  of  directors,  §§  290, 

305. 
Lost,  destroyed  or  withhold  certificate,  action  for  new, 

§  328. 
Lost,  destroyed  or  withhold  certificate,  action  for  new, 

protection  of  company,  §  328. 
Married  woman,  proxy  by,  §  325. 
Married   woman,  stock  in   name  of,  dividends  to  whom 

paid,  §  325. 
Married  woman,  stock  in  name  of,  how  transferred,  §  325. 
Meeting,  adjournment  of,  §  512. 

Meetings  for  removal  of  directors,  how  called,  §  310. 
Meeting,  justice  may  order  if  no  method  provided,  §  311. 
Meeting,  justice  may  order  on  what  application,  §  311. 
Meetings,  quorum  must  be  present,  §  305. 
Members  control  where  no  capital  stock,  §  305. 
Members,   liability   of,   actions   against,    §    322. 
Members,  liability  of,  how  enforced,  §  322. 
Members,  liability  where  no  capital  stock,  §  322. 
Proxies,  for  what  time  valid,  §  321b. 
Proxies,  how  executed,  §  321&. 
Proxies,   revocable,   §   321?>. 
Proxies,  time,  by-law  in  corporation  without  stock  may 

prescribe,  §  321?). 
Proxies,  who   may  act,  by-laws   of   corporation   without 

stock  may  prescribe,  §  321&. 
Proxy  by  married  woman,  §  32'5. 
Eeal  estate,  power  to  hold,  §  360. 

Real   estate^   land   and   building  in   which   business  car- 
ried on,  acquiring,  §  360.  - 
Eepeal   of  laws  relating  to,  power  of  reserved,  §§   403, 

404. 
Eepeal  of  laws  relating  to,   effect   of  on  rights  against, 

§§  403,  404. 
Stock,  issuance  of  certificate  before  fully  paid  up,  §  323. 
Stock,  issuance  of  certificate  when  fully  paid  up,  §  323. 
Stock  in   name  of   married  woman,   dividends  to   whom 

paid,  §  325. 
Stock  in  name  of  married  woman,  proxy,  §  o25. 
Stock,  in  name  of  married  woman,  transfer,  §  325. 
Stock,  lost,  destroyed  or  withheld  certificate,  action  for 

new,    §    328. 
Stock,  lost,  destroyed  or  withheld  certificate,  action  for 

new,   protection   of   company,    §    328. 


CORPORATIONS.  151 

Stockholder,  guardian  or  trustee's  liability  as,  §  322. 

Stockholders'  personal  liability,  creditor  may  institute 
joint  and  several  actions,  §  322. 

Stockholders'  personal  liability  does  not  extend  to  what 
persons,  §   322. 

Stockholders'  personal  liability  extends  to  what  persons, 
§  322. 

Stockholders'  personal  liability,  extent  of  how  deter- 
mined, §   322. 

Stockholders'  personal  liability,  foreign  corporation,  § 
322. 

Stockholders'  personal  liability,  funds  in  guardian's 
hands,  liability  of,  §  322." 

Stockholders'  personal  liability,  how  enforced,  §  322. 

Stockholders'  personal  liability^  in  general,  §  322. 

Stockholders'  personal  liability,  measure  of,  §  322. 

Stockholders'  personal  liability  not  released  by  transfer 
of  stock,  §  322. 

Stockholders'  personal  liability  released  on  payment  of 
his  proportion,  §  322. 

Stockholders'  personal  liability  released  when,  and  when 
not,  §  322. 

Stockholders'  personal  liability,  several  judgments 
against  for  debts,  §  322. 

Stockholders'  personal  liability,  stock  held  as  collateral, 
§  322. 

Stockholders'  personal  liability,  stock  held  by  represen- 
tntive,   §    322. 

Stockholders'  personal  liability,  trust  fund's  liability 
for,  §  322. 

Stockholders '  personal  liabilit}^  when  a  guardian  or  trus- 
tee, §  322. 

Stockholders,  who  are,  §   322. 

Stockholders,  who  are  not,  §  322. 

Summons,  penalty  for  failure  to  designate  person,  upon 
whom  may  be  served,  §  406. 

Three  or  more  persons  may  form,  §  285. 

Transfer  of  shares  does  not  release  stockholders'  liabil- 
ity, §  S22. 

"Trust"  or  "trustee,"  when  only  can  use  as  part  of 
corporate  name,  §  290i^. 

Trusts,  when  only  can  accept  and  execute,  §   290i^. 

Wills,  when  only  can  take  under,  §  1275. 


152  COSTS-DIVIDENDS. 

COSTS,   negotiable   instrument  may  provide   for,   §   3088. 
COURT,  clerk  of,  may  take  acknowledgments,  §  1181. 
COURT  COMMISSIONERS,  acknowledgments,    may    take,  § 

1181. 
COVENANTS.     Covenant  with  owner  of  another  tract  runs 

with   both  tracts  when,   §   1468. 
CREDITORS.     See  Assignments  for  the  Benefit  of  Creditors. 
CRIMINAL   LAW.     Warehouseman,   violation     of    law    by, 

punishment,  §  1858/. 
CRUELTY:  See  Divorce. 
CRUELTY   TO    CHILDREN   AND    ANIMALS,    societies   to 

prevent:   See  Societies  for  Prevention  of  Cruelty 

to  Children  and  Animals. 

DAMAGES.     Dishonor  of  bill  of  exchange,  §   3235. 

Exemplary,  in  case  of  malice,  fraud  or  oppression,  §  3294. 
Fire,  treble  damages  for  setting,  §  3346«. 
Eefusal  of  admission  to  places  of  amusement,  §  54. 
Treble  for  setting  fire,   §   3o46«. 
DEATH.     Beneficiary     receiving     advancements,     effect    on 
heirs,  §  1399. 
Beneficiary  under  will,  rights  of  children,  §  1310. 
DEBTOR  AND  CREDITOR:   See  Assignments  for  Benefit  of 

Creditors. 
DECLARATION,  homestead,  of,  what  to  contain,  §   1263. 
DEEDS:   See  Covenants. 

Change  of  name,  act  relating  to  conveyances  in  ease  of, 

§   1096,  note. 
Change  of  name,   conveyance  in  case   of,   §   1096. 
Heir,  conveyance  by  valid  unless  will  proved  within  four 
years,   §    1364. 
DEFINITIONS:   See  Words  and  Phrases. 

Contract  of  mutual  insurance  on  assessment  plan,  §  453d. 
Extreme  cruelty,  §  94. 
DESCENT,   rules   of,   where   one   dies   intestate,   §   1386. 

See   Succession, 
DEVISEES:   See  Wills. 
DIRECTORS:   See  Corporations. 
DISTRIBUTION:   Sec  Succession. 

Rules  of  descent  and  distribution  in  case  of  intestacy, 

§  1386. 
Rules  of  where  one  dies  intestate,  §  1386. 
DIVIDENDS:   See  Corporations. 


DIVORCE— EXEMPLARY   DAMAGES.  153 

DIVORCE.     Alimony,  court  may  award  pending  suit,  §  137. 

Children,  custody,  care  and  maintenance  of,  §   138. 

Children,  order  relating  to,  modification  and  vacation  of, 
§  138. 

Extreme  cruelty,  definition  of,  §   94. 

Maintenance  by  husband,  wife  or  children  where  divorce 
denied,  §  136. 

Maintenance  without  divorce,  action  for,  §   137. 

Maintenance   without   divorce,   judgment   how  enforced, 
§  137. 

Maintenance  without  divorce,  judgment,  modification  of, 
§  137. 

Nullity  of  marriage  does  not  affect  legitimacy  of  chil- 
dren, §  84. 
DOMESTIC  RELATIONS.  Divorce:   See  Guardian  and  Ward; 
Husband  and  Wife;  Parent  and  Child. 

Abduction  forbidden,  §  49. 

Seduction  forbidden,  §  49. 

ELECTRIC  CORPORATIONS:   See  Lighting  Corporations. 
ELECTRICITY,  statute    authorizing    steam    roads    to  use,  § 

465rt,  note. 
ELEVATED  ROADS,  franchise  for,  power  to  grant,  §  493. 
ENDOWMENT  INSURANCE:   See  Mutual  Insurance  on  As- 
sessment Plan. 
ENTICEMENT,  apprentice,  of,  a  misdemeanor,  §  275. 
Child  from  guardian,  forbidden,  §  49. 
Child  from  parent,  forbidden,  §  49, 
Of  wife,  forbidden,  §  49. 
EQUAL  RIGHTS:   See  Civil  Rights. 
ESCHEAT.     Proceedings    where    succession    to    estate    not 

claimed,  §§  1405,  1406. 
ESTATES     OF     DECEASED     PERSONS:   See     Succession; 
Wills. 
Conveyance  by  heir  valid  unless  will  proved  within  four 
vears,  §  1364. 
EXCHANGE,  BILLS  OF:  See  Negotiable  Instruments. 
EXECUTIONS.     Franchise  may  be  sold  on  execution  against 
corporation,  §  388. 
Franchise,  sale   of,   duties  and  liabilities,   §    391. 
Franchise,  sale  of,  redemption  of,  §  392. 
Franchise,  sale  of,  where  made,  §  393. 
EXECUTORS.     Power  to  bind  minor  as  apprentice,  §  265. 
EXEMPLARY  DAMAGES:   See  Damages. 


154  EXEMPTIONS-FOREIGN   CORPORATIONS. 

EXEMPTIONS.     Monoys    arising   under   mutual   assessment 
contract,   §   453fc. 

FEES  for  filing  articles  by  foreifjn  corporation,  §  409. 
FELONY.     W-r"hou=emnn,  violation  of  law  by,  §  18.58f. 
FERRY  CORPORATIONS:   See  Bridge,  Ferry," Wharf,  Chute, 

or  Pier  Corporations. 
FINDERS  of  lost  property:   See  Lost  Property. 
FIRE,  treble  damages  for  setting,  §  3346ff. 

Warehousemen,  when  only  liable  for,  §  1858e. 

Water  companv  to  furnish  water  free  in  case  of,  §  549. 
FIRE  INSURANCE  COMPANIES:  See  Insurance  Corpora- 
tions. 
FIRE  PATROL,  act  giving  underwriters  power  to  equip,   § 
453rf,  note. 

Assessment  to  maintain,  how  collected,  §  453f. 

Assessment  to  sustain,  how  apportioned,  §  453c. 

Duties  and  powers  of,  §  453f/.. 

Expenses  of,  limit  upon,  §  453r'. 

Fire  insurance  companies  may  maintain.  5  453'/. 

Injuries  to  animals  or  property  of,  punishment  of,  §  453&. 

Laws   and   ordinances  protecting  fire   department,  applv 
to,  §  453&. 

Maintenance  of,  statement  of  premiums,  corporations  to 
file,  §  453c. 

Maintenpnce  of,  statement  of  premiums,  demand  for,   § 
453c. 

Maintenance  of,  statement  of  premiums,  failure  to  file, 
penalty  and  collection,  §  453c. 

Meeting  of  corporations  interested  to  be  held  yearly,  § 
453c. 

Meeting  of    corporations,    majority  to    decide  all  ques- 
tions,  §  453c. 

Meeting  of  corporations,  notice  of,   §  453c. 

Meeting   of   corporations,   right   to   vote,   §    453c. 

Obstruction  of  on  way  to  fire,  punishment  of,  §  4531). 

Power   to    enter   buildings    and   take    property,    §    45Sa. 

EiLdit   of   way  while   running  to   fires,    §    453?). 

T^ndorwritors   mny   maintain,    §    453»^/. 
FOREIGN      CORPORATIONS,      actions,     cannot      maintain 
or  defend,  when,  §  406. 

Articles,  act  requiringr  filing  of,  ^§  408,  note. 

Articles,  failure  to  file,  penalty  for,  §  410. 


FOTIEIGN    CORPORATIONS— GUARDIAN    AND    WARD.      155 

Articles,    failure    to    file,    proceedings    against,    §    410. 
Articles  of  incorporation,  certified  copies  of  to  be  filed, 

§  408. 
Articles  of  incorporation,  fees  for  filing,  §  409. 
Evidence  of  corporate  existence,  what  admissible,  §  406. 
Insurance  corporations  on  assessment  plan:   See    Mutual 

Insurance  on  Assessment  Plan. 
Eailway    corporations,    rights,  powers  and    liabilities,   § 

407. 
Statute   of  limitations   operates   in   favor   of,  when   and 

when  not,  §  406. 
Summons,  act    relating  to    designation    of  person    upon 

whom  may  be  served,  §  405,  note. 
Summons,  designation  of  person  on  whom  may  be  served, 

revocation  and  new  designation,  §  406. 
Summons,  designation  of  person  on  whom  may  be  served, 

§  405. 
■Summons  may  be  served  on  Secretary  of  State,  when,  § 
405. 
FOREIGN  WILLS,  validity  of  in  this  state,  §  1285. 
FORMS.     Acknowledgment    by    corporation,    §    1190. 
FRANCHISE.     Corporation:   See  Corporations. 
FRATERNAL  SOCIETY  not   governed   by  laws  relating  to 

mutual   assessment    corporations,    §    453p. 
FRAUD,  exemplary  damages  in  case  of,  §  3294. 
See  Statute  of  Frauds. 

GAS   CORPORATIONS:   See   Lighting   Corporations. 
GOODWILL  is  property,  §  993. 
Is  transferable,  §  993. 

Name  of  business  may  be  transferred  with,  §  993. 
GUARDIAN  AND  WARD.     Apprentice,  guardian  may  bind 
ward  as,  when,  §  265. 
Custody  of  minor,  preference  between  persons  claimino-, 

§  246. 
Custody   of  minors,   rules   for   awarding,   §    246. 
Enticement  of  child  from  guardian.   §   49. 
Marriage  of  ward,  consent  of  guardian  necessary  when, 

§   69. 
Orphan  asylum,  managers  have  preferred  right  to  guard- 
ianship, when,  §  246. 
Parent   failing  to   maintain  child  forfeits   guardianship, 
§  246. 


156  GUARDIAN   AND   WARD-INSANE  PERSONS. 

Permitting    cliild  to  remain  in    orphan    asylum  without 
notice  forfeits  guardianship,   §   246. 

HEALTH  INSURANCE:  See  Mutual  Insurance  on  Assess- 
ment  Plan. 
HEALTH    INSURANCE    CORPORATIONS:  See   Insurance 

Corporations. 
HIRING.     Deteriorations  or  injuries,  duty  to  repair,  §  1929. 
Hirer  may  terminate  hiring  before  end  of  term,  when,  § 

1932. 
Hirer  to  use  property  only  for  purpose  hired,  §  1930. 
Hirer  using  for  different  purpose,  rights  of  letter,  §  1930. 
HOLIDAYS.     Business  days,  what  days  are,  §  9. 
HOMESTEAD,  declaration  of,  what  to  contain,  §  1263. 

Insane  persons,  of:   See  Insane  Persons. 
HORSELESS  VEHICLES,  franchises  for  roads  for,  §  524. 
HOTELS.     All  citizens  to  have  equal  rights,  §  51. 

Denial   of   equal   rights   in,   punishment   for,    §    52. 
HUSBAND  AND  WIFE.     Abduction  of  husband  or  wife,  § 
49. 
Enticement  of  wife,  forbidden,  §  49. 
Maintenance,  action  for  by  wife  without  divorce,  §  137. 

See  Divorce. 
Seduction  of  wife  forbidden,  §  49. 
Separate  property  of  wife,  liability  of  for  debts,  §  171. 

ILLEGITIMACY:   See  Legitimacy. 
INDENTURE:   See  Apprenticeship. 

INFANCY:  See  Adoption;  Guardian  and  Ward;  Parent  and 
Child. 
Apprenticeship:  See  Apprenticeship. 

Cruelty  to  children,  societies  to  prevent.     See  Societies 
for  Prevention  of  Cruelty  to   Children  and  Ani- 
mals. 
Legitimacy:  See  Legitimacy. 

Marriage,  consent  of  parent  or  guardian  when  necessary, 
§  69. 
INHERITANCE,  rules  of,  where  one  dies  intestate,  §  1386. 

See  Succession. 
INJUNCTION,  when  may  be  granted,  §  3366. 
INNS.     All   citizens  to  have  equal  rights,   §   51. 

Denial   of   equal   rights,  punishment,   §   52. 
INSANE    PERSONS'.     Homesteads,    act    authorizing   aliena- 
tion or  incumbering,  §  1269a. 


INSANE   PERSONS— INSURANCE  CORPORATIONS.  157 

Homestead  of,  application  for  order  to  sell  or  mortgage, 
service   and  publication   of,   §   1269b. 

Homestead  of,  may  be  sold  or  mortgaged  for  what  pur- 
poses,   §    1269ff. 

Homestead  of,  petition  to  sell  or  mortgage,  subscription 
and  verification  of,  §  1269ffl. 

Homestead  of,  petition  to  sell  or  mortgage,  what  to 
state,   §   1269rt. 

Homestead  of,  public  administrator  when  to  represent 
on  petition  to  sell  or  mortgage,  §  1269&. 

Homestead  of,  public  administrator  representing  on  pe- 
tition to  sell  or  mortgage,  fee  of,   §   1269&. 

Homestead  of,  sale  or  mortgage  of,  bond  on,  §  1269c. 

Homestead  of,  sale  or  mortgage,  effect  of,  §  1269p. 

Homestead  of,  sale  or  mortgage,  when  ordered,  §  1269e. 

Homestead  of,  sale  or  mortgage  of,  report  and  confirma- 
tion, §  1269c. 

Homestead  of,  sane  spouse  may  petition  to  sell  or  mort- 
gage, §  1269a. 
HmSTRUMENTS.     Action   to    obtain   judgment    proving   in- 
strument, §  120S. 
INSURANCE,  mortgaged  property,  on,  §  2541, 
INSUEANCE  COMMISSIONEES:  See  Mutual  Insurance  on 

Assessment  Plan. 
INSUEANCE  COEPOEATIONS.     Assessment  insurance:  See 
Mutual  Insurance  on  Assessment  Plan. 

Capital  and  accumulations,  how  invested,  §  421. 

Dividends  when  only  to  be  declared,  §  452. 

Fire  and  marine  insurance  corporations,  limit  on  one 
risk,  §  428. 

Fire  insurance,  fire  patrol,  rights  and  powers  as  to:  See 
Fire  Patrol. 

Fire,  life,  health,  accident  and  marine  insurance  com- 
panies, approval  of  investment  by  two  thirds  of 
directors,   §   421,  sub.   6. 

Fire,  life,  health,  accident  and  marine  insurance  com- 
panies, limit  on  investments,  §  421,  sub.  6. 

Fire,  life,  health,  accident  and  marine  insurance  com- 
panies, report  of  investments,  §  421,  sub.  6. 

Fire,   life,   health,    accident    and    marine   insurance    cor- 
porations,  accumulations,    how  invested,    §    421, 
sub.  5. 
Civil  Code— 14 


158     INTEfePRETATION-LAND  AND  BUILDING  ASSOCIATION. 

Life  insiiranoe   comp;\nios,   policy  loans,  provisions   con- 
corning,   §   421,   sub.   7, 

Life  insurance  companies,  power  to  loan  on  policies,   § 
421,   sub.    7. 

Limit    on   risks   of   fire   and    marine    insurance    corpora- 
tions,  §  428. 

Mutual  benefit  and  life  associations:   See  Mutual  Bene- 
fit  and  Life  Associations. 

Mutual   insurance   on   assessment   plan:    See   Mutual  In- 
surance On  Assessment  Plan. 

Mutual    life,    health    and     accident     companies,     capital 
stock  required,   §  437. 

Mutual  life,  health  and  accident  companies,  distribution 
of  stock,  where  oversubscribed,  §  437. 

Mutual  life,   health   and   accident   companies,   guarantee 
fund,  §  437. 

Mutual  life,  health  and  accident  company,  rejection   of 
subscription,  §  437. 

Eeal  estate,  power  to  acquire,  §  415. 

Real  estate,  within  what  time  to  be  disposed  of,  §  415. 

Title  insurance  corporations:   See  "Title  Insurance  Cor- 
porations." 
INTERPRETATION:  See  Words  and  Phrases. 
INTESTATE.     Succession  to  and  distribution  of  property,  § 

1386. 
IRRIGATION:   See  Waters. 

JAPANESE.     Marriage  between  whites  and  mongolians  for- 
bidden, §  60. 
JOINT  OWNERS.     Ditches,  flumes,  etc.:   See  Waters. 
JURY:    See  Apprenticeship. 
JUSTICES  OF   THE   PEACE,   acknowledgments,   may  take, 

§  iisi. 

Meeting  of  corporation,  justice  may  order  when,  §  311. 

LABORERS:   See  Liens. 

LAND  AND  BUILDING  ASSOCIATION,  withdrawal  or  sur- 
render, notice  of,  §  63Sr/. 
Withdrawal  or  surrender,  right  of,  §  638fT. 
Withdrawal   or   surrender,   stockholder   to   receive   what 

amount,   §    638fl. 
Withdrawals  to  be  paid  in  succession,  §  638a. 


LAND    AND    "WATER    COUPORATION— LIENS.  159 

LAND  AND  WATER  CORPORATION.  Division  of  lanrl 
and  water  rights  among  stockholders,  right  of, 
§  309. 

Division  of  land  and  water  rights  among  stockholders, 
rights  of  creditors,   §   309. 
LANDLORD  AND  TENANT.     Action  for  possession  without 
notice,  where  right  of  re-entr}^,  §  793. 

Assignee  of  lessee,  rights  of  landlord  against,   §   822. 

Re-entry,   right    of   how   exercised,   §    793. 
LEASE:  See  Landlord  and  Tenant. 
LEGACIES:   See  Wills. 

LEGITIMACY.  Mother  alone  can  bind  illegitimate  child  as 
apprentice,  §  265. 

Mother   marrying,  right  to  bind   child   as  apprentice,   § 
265. 

Nullity  of  marriage  does  not  affect  legitimacy  of  chil- 
dren, §  84. 

Succession   to    estate   where   child    legitimated   by   mar- 
riage, §  1388. 

Succession  to  estate  where  child  not  legitimated,  §  1388. 
LICENSE.     Marriage:    See  Marriage. 

LIENS,  loggers,  act  giving  lien  to  laborers  in  logging  camp, 
§  3065,  note. 

Loggers',  action  on,  attachment  of  logs,  §  3065. 

Loggers,  action  to  be  brought  within  what  time,  §  3065. 

Loggers,  duration  of,  §  3065. 

Loggers  have,  §  3065. 

Loggers,  priority  of,  §  3065. 

Propagation,  lien  of  owner  of  animal  used  for,  act  relat- 
ing to,  §  3062,  note. 

Propagation,  lien  by  owner  of  animal  used  for,  claim  of, 
^§    3063. 

Propagation,  lien  by  owner  of  animal  used  for,  enforce- 
ment of,  §  3064. 

Propagation,  owner  of  animal  used  for  has  lien,  §  3062. 

Restoration  of  property  subject  to,  to  owner,  effect  of,  § 
2913. 

Right  of  redemption  of  property  subject  to,  §  2903. 

Subrogation  of  person  redeeming  proj^erty  subject  to,  § 
2903. 

Threshing-machines,   act    giving  lien    to  laborers   on,   § 
3061,  note. 

Threshing-machine,  laborer  on  has  lien,  §  3061. 


160  LIENS-LOST  PROPERTY. 

Threshing-machine,   lien    of   laborer    on,    duration    of,    § 
30G1. 

Threshing-machines,    liens'   of    laborers    on,    enforcement 
of,  §  3061. 

Threshing-machines,  proceedings  where  several  laborers 
have  liens,  §  30G1. 
LIFE  INSURANCE:   See   Mutual   Insurance   on   Assessment 
Plan. 

Mutual  benefit  and  life  associations:   See  Mutual  Bene- 
fit and  Life  Associations. 
LIFE  INSURANCE   COMPANIES:   See   Insurance   Corpora- 
tions. 
LIGHTING  CORPORATIONS.     Duty  to  furnish  gas  or  elec- 
tricity on  application,  §§  629,  630. 

Refusal  to  furnish  gas  or  electricity,  punishment   of,   § 
629. 

Refusal  to  supply  gas  or  electricity,  when  justified,  §§ 
630,  63Ga. 

Right  to  enter  buildings  for  inspection,  §  631. 

Right  to   enter  building,  prevention   of,  punishment   of, 
§  631. 

Right  to  enter  building  to  shut  off  light,  §  632. 

Shutting  off  of  light  when  justified,   §   632. 
LIMITATION    OF    ACTIONS,     apprentice,     action     by    for 

breach   of  covenant,  §  273. 
LIMITATIONS.     Conveyance     by     heir    valid    unless     will 
proved  within  four  years,  §  1364. 

Directors,  action  for  creating  excessive  debt,  §  309. 

Directors,  action    for   reducing    or   withdrawing    capital 
stock,  §  309. 
LOGGERS:   See  Liens. 

LOST  INSTRUMENT.     Certificate  of  stock,  action  for  ne-vf 
certificate,    §    328. 

Certificate   of  stock,  judgment   for  new   certificate,  pro- 
tection of  company,  §  328. 
LOST  PROPERTY,  appraisement  of,   §   1865. 

Finder,  duty  of  where  owner  not  known,  §   1865. 

Finder  of,  title  vests  in  after  what  time,  §  1871. 

Finder  not  to  charge  compensation,   §   1865. 

Finder,   penalty   for   failure   to   comply  with   statute   or 
to  surrender  property,  §   1871. 

Finder,  publication  of  list  by,  §  1871. 

Finder,  title  when  vests  in,  §  1871. 

Finder  to  notify  owner,  §  1865. 


LOST  PROPERTY— MECHANIC'S  INSTITUTE.  161 

Finder  to  restore  property,  §  1S65. 
Lists  of,  preparation  and  filing  of,  1865. 
LUNATICS:   See  Insane  Persons. 

MAINTENANCE,  action  for,  by  wife  without  divorce,  §  137. 

See  Divorce. 
MALICE,  exemplary  damages  in  case  of,  §  3294. 
MARINE  INSURANCE  COMPANY:   See  Insurance  Corpora- 
tions. 
MARRIAGE.     Declaration    of    marriage    by    persons    of    re- 
ligious sect,  §  79a. 

Divorce:   See  Divorce. 

Infant,  consent  of  parent   or  guardian  when  necessary, 
§  69. 

License,  infant,  consent  of  parent  or  guardian  necessary, 
§  69. 

License,  infant,  examination  of  parties,  §  69. 

License  necessary,  §  69. 

License  not  to  issue  to  what  persons,  §  69. 

License,  what  to  show,  §  69. 

License,  how  obtained,  §  69. 

Nullification   of,  legitimacy   of   children   not   affected,   § 
84. 

Religious  sect,  declaration  of  marriage  bv  members  of, 
§  79a. 

Religious   sect,  marriage  of,  manner  of,   §   79a. 

Solemnization  necessary,  §  68. 

Solemnization,  want  of,  effect  of,  §  68. 

Whites,   marriage   of   with   negroes,   mongolians   or   mu- 
lattoes  void,  §  60. 

Will,  effect  of  on,  §  1300. 
MARRIED  WOMEN,  stock  in  name  of,  dividends  to  whom 
paid,   §    325. 

Stock  in  name  of,  how  transferred,  §  325.     ; 

Stock  in   name   of,  proxy,   §   325.  ''^ 

MASTER  AND  SERVANT,  act  giving  lien    to    laborers  in 
logging  camps,  §  3065,  note. 

Act    giving    lien    to    laborers    on    threshing-machines,    § 
3061,  note. 

Apprenticeship:   vSee  Apprenticeship. 

Injury  to  servant  forbidden,  §  49. 

Seduction  of  servant  forbidden,  §   49. 
MECHANIC'S  INSTITUTE:   See  title  "Chambers  of  Com- 
merce.  Boards    of     Trade     and   Mechanic's   Insti- 
tutes." 


162  MERGER-MINING   CORPORATIONS, 

MERGER.     Writing  supersedes  prior  negotiations,  §  1625. 
MESSAGES,  (hitv  of  carriers  of  to  deliver,  §  21G1. 
MINING  CORPORATIONS,  act  for  the  better  protection  of 
stockholders  in,  §   588,  note. 

Act    requiring    posting  statements,    keeping    books,  etc., 
§  588,  nota. 

Act  permitting  inspection   of  property,   §   588,  note. 

Books,  right  of  inspection  of,  §  588. 

Consolidation  of,   §   587'''. 

Examination  of  mine  with  expert,  right  of,  §§  588,  589. 

Examination  of  property  and  boolcs,  right  of,  §  588. 

Examination,   order   for,   duty  of   superintendent   on   re- 
ceiving, §  589. 

Examination,    order    for,    liability    of    president    failing 
to  issue,   §   590. 

Examination,    order     for,     president   to    issue    to    stock- 
holder on  application,   §   589. 

Examination,   order   for,   punishment   of    superintendent 
failing  to  obey,   §  589.     . 

Inspection   of  books,  right   of,   §  588. 

Inspection   of   reports,   accounts   and   correspondence    of 
superintendent,  right   of,   §  588. 

Receipts  and  expenditures,  liability  of  directors  failing 
to  make  and  post,  §  590. 

Receipts  and  expenditures,  monthly  report  of  by  super- 
intendent,   §  588. 

Receipts     and     expenditures,    monthly    statement    to   be 
published,    §  588. 

Receipts    and     expenditures,    statements   of,   verification 
and   posting  of,   §  588. 

Receipts    and    expenditures,   act    relating   to   posting   of 
statements,   §  588,  note. 

Receipts  and   expenditures,  secretary  to  keep  books  of, 
§  588. 

Stock   transfer   agencies,   establishment   in    other   states 
authorized,    §  586. 

Stock  transfer  agencies,  governed  by  by-laws  and  direct- 
tors  of   corporation,   §  586. 

Stock    transfer    agencies,    stock,    how    transferred    at,    § 
587. 

Stock  transfer  agencies,  transfer  at,  validity  of,  §  586. 

Superintendent,     accounts,     correspondence     and     report 
open  for  inspection,  §     588. 


MISDEMEANOTl.  163 

Siipcrintenilent,   duty   of,   ou   receiving   order   for   exam- 
ination, §  5S9. 

Superintendent    failing    to  obey    order  of    examination, 
punishment  of,   §   589. 

Superintendent,  monthly  report  of,  §  588. 

Superintendent,  report  as  to  ore  and  discoveries,  §  588. 
MTP.DEMEANOR.     Apprentice,  enticing  or  harboring.  §  275. 
MONGOLIANS,  marriage  between,  and  whites  forbidden,  § 

60. 
MORTGAGES,  chattel:   See  Chattel  Mortgages. 

Insurance   by   mortgagor   assigned   to   mortgagee,   effect 
of,  §  2541. 

Insurance   by   mortgagor   in   favor   of   mortgagee,   effect 
of,   §   2541. 
MITLATTOES,  marriages  between,  and  whites  forbidden,   § 

60. 
MUNICIPAL    CORPORATIONS,    franchises    for    roads    for 

horseless  veliicles,  §  324. 
MURDER.     One  convicted  of  murdering  decedeat  not  to  suc- 
ceed to  estate,  §  1409. 
MUTUAL  BENEFIT  AND  LIFE  ASSOCIATIONS.     Act  re- 
lating to  mutual  benefit  and  relief  associations,  § 
453r7,    note. 

Articles  of  incorporation,  filing  of,  §  452fl. 

Articles  of  incorporation,  signing  and  verification,  §  452«. 

Articles  of  incorporation,  what  to  contain,  §  452a. 

Assessments,  limit  on  power  to  levy,   §  453. 

Assessments,  power  to  levy,  §  453. 

By-laws,  §  453. 

Formation  of,  authorized,  §  452a, 

Formation  of,  manner  of,  §  452a. 

Number  of  members,  §  452a. 

Powers  and  liabilities,  §  453. 
MUTUAL    INSURANCE    ON    ASSESSMENT  PLAN.     Act 
relating  to  life,   health,   accident   ^nd   annuity   or 
endowment  insurance  on  assessment  plan,  §  453d, 
note. 

Application,   contract   to   be   founded   on,    §    453/. 

A'pplication,  false  statement  in,  punishment  for,  §  453y. 

Application,  report  of  physician,  §  453';. 

Articles  of  incorporation,  filing,  §  453e. 

Benefit   societies  exempt  from   provision  of  act,   §   453/). 

Bonds   or   securities,   held  in   trust   for  contract   holders, 
§  453e. 


164  MUTUAL  INSURANCE  ON  ASSESSMENT  PLAN. 

Bontls  or  securities,  deposit  with  state  treasurer,  §  453c. 

Business,  compliance  with  Political  Code  prerequisite 
to   soliciting,   §   453f. 

Business  to  be  commenced  within  year,  §  453<?. 

Certificate  of  insurance  commissioner  before  issuance  of 
contracts,  §  453e. 

Contract  of,  defined,  §  453f?. 

Contracts,  certificate  of  insurance  commissioner  to  be 
obtained  before  issued,  §  453e. 

Contract,  limit  upon  right  to  issue,  §  4'o3;. 

Contracts,  membership  and  capital  required  before  is- 
suing, §  453p. 

Contracts,  must  show  liabilities  not  limited  to  fixed 
premiums,    §    453(7. 

Contracts,  what  to  specify,  §  455(7. 

Corporations  to  carry  on,  laws  governing,  §  453e. 

Corporations  to  carry  on  may  be  formed,  §  453p. 

Discontinuance  of  business,  disposition  of  reserve  fund, 
§  453ft. 

Exempt,  money  obtained  from  corporation  is,  §  453A;. 

False  statements  to,  punishment  for,   §   453/. 

Fees,  amount  of  and  disposition  of,   §  453/1. 

Foreign  corporations,  conditions  precedent  to  doing  busi- 
ness,   §   453i. 

Foreign  corporations,  license,  renewal  of,   §  453i. 

Foreign  corporations,  license,  revocation  of  and  notice 
of,   §   453/. 

Foreign  corporations,  license  to  be  issued  to,  when,  § 
453i. 

Foreign  corporation,  retaliatory  clause  relating  to  fees, 
etc.,  §  453i. 

Fraternal  societies  exempt  from  provisions  of  act,  § 
45op. 

Insurance  commissioner,  examining  into  affairs  of  by,  § 

4:531. 

Insurance  commissioner,  expenses,  presentment,  allow- 
ance and  payment  of,  §  453o. 

Insurance  commissioner,  proceedings  by  against,  §  453?. 

Investment   of  funds,   §   453e. 

Investment  of  reserve  and  emergency  fund  and  deposit 
of   securities,   §  453ft. 

Lapsing  of  policies,  notice   of,   g   453to. 

Moneys  obtained  from,  exempt,  §  453fc. 

Name  of,  §  453e. 


NAMES— ORPHAN    ASYLUM.  165 

Organization,  to  be  completed  in  year,  §  453c. 

Payment,  time  of  and  effect  of  failure  to  pay,   §  453f7. 

Penalties,  disposition   of,  §  453«. 

Pre-existinor   corporations,   reincorporation   of,    §   453/". 

Pre-existing  corporations,  rights  of,  §  45.-;f. 

Priority   of  indebtedness  under  contract,   §   453,7. 

Reserve   and   emergency  fund   to   be   created,   §   453ft. 

Eeserve  and  emergency  fund,  disposition  of  where  busi- 
ness discontinued,  §  453//. 

Eeserve   and   emergency  fund,   extent   of,   §   453/(.. 

Eeserve  and  emergency  fund,  investment  of  and  deposit 
of  securities,  §  453ft. 

Eeserve  and  emergency  fund,  time  "within  which  to  be 
accumulated,  §  453ft. 

Eeserve   and   emergency   fund,   what   part  of,   §   453ft. 

Eevocation  of  power  to  do  business,  §  453?. 

Secret  societies  exempt  from  provisions  of  statute,  § 
453?J. 

Statements  to  be  filed  annually,   §  453Z. 

NAMES:  See  Goodwill. 

Change  of,  property,  how  conveyed  in  case  of,  §  1096. 
NAVIGATION:   See  Shipping. 

NEGOTIABLE  INSTRUMENTS.     Bills  of  exchange,  accept- 
ance, unconditional  promise  to  accept,  §   3197. 

Bills  of  exchange,   dishonor   of,  damages,   §   3235. 

Bills   of   exchange,   presentment   when   excused,    §    3176. 

Bills  of  exchange,  where  payable,  §  3176. 

May  provide  for  attorney's  fee   and   costs,   §   3088. 

Presentment  for  payment,  how  made,   §   3131. 

To  be  payable  in  money  only,  §   3088. 

To  be  unconditional,  §  3088. 

Waiver  of  presentment  of  bill  of  exchange,  what 
amounts  to,  §   3176. 

Warehouse   receipts:    See   Warehousemen. 
NEGROES,  marriage  between,  and  whites,  forbidden,   §   60. 
NONRESIDENTS:    See    Assignments    for    Benefit    of    Cred- 
itors. 
NOTARY  PUBLIC,   acknowledgments,  may  take,   §   1181. 

ORPHAN   ASYLUM.     Managers    have    preferred     right     to 
guardianship,  when,  §  246. 


166         PARENT   AND    CHILD-PUBLIC   ADMINISTRATOR. 

PAKENT   AND   CHILD.     Abcl-uetion   of   parent   or   child,    § 
49. 
Adoption:   See  Adoption. 

Enticement    of    child    from    parent    forbidden,    §    49. 
Failing  to   maintain   child   forfeits   guardianship,    §    246. 
Legitimacy:   See  Legitimacy. 
Permitting   child   to   remain   in   orphan   asylum   without 

notice   forfeits   guardianship,    §    246. 
Pretermitted   child   or  issue  of  child,  rights  of,   §   1307. 
Seduction  of  child  forbidden,  §  49. 

Will,  child  born  after  making  of  will,  rights  of,  §  1306. 
PARTNERSHIP.     Certificate  of  place  where  summons  may 
be  served,  §  1163. 
Certificate  of  place  where  summons  may  be  served,  af- 
fidavit  on   change   of  residence,   §   1163. 
PASSENGERS:   See  Eailroad  Corporations. 
PAYMENT,  presentment  of  negotiable  instrument  for,  man- 
ner of,  §  3131. 
PERSONAL  RIGHTS.     All  citizens  to  have  equal  rights  in 
public  places,  §  51. 
Denial  of  equal  rights    to  all  citizens,  punishment   for, 

§    52. 
Refusal   of  admission  to  place   of  amusement,  damages, 

§    54. 
Refusal   of  admission  to  place   of  amusement   unlawful, 
§    53. 
PERSONS:    See  Carriers  of  Persons. 
PIER  CORPORATIONS:    See  Bridge,  Ferry,  Wharf,   Chute,' 

or  Pier  Corporation. 
POSSESSION,   action   for,   lies   without   notice,   where   right 

of  re-entry,  §  793. 
PREFERENCE?',  right  of  debtor  to  make,  §  3451. 
PRESENTMENT,   nesrotiable  instrument,  manner  of,  §  3131. 
PRETERMITTED  CHILD,  rights  of,  §  1307. 
PRINCIPAL  AND  AGENT:  See  Agency. 
PROFITS:    S  e    Co-operative    Business   Corporations. 
PROHIBITION,  when  may  be  granted,  §  3366. 
PROPAGATION,  lien  of  owners  of  animals  used  for,  §  3062. 
PROPERTY.     Lost  property:  See  Lost  Property. 
PROXIES:    See   Corporations. 

PUBLIC  ADMINISTRATOR   to  rer^res^-nt  insane   spoTise   on 
petition   to   sell   or   mortgage   homestead,   when, 
12696. 


PUBLIC  ADMINISTRATOR-RAILROAD  CORPORATIONS.      167 

Fee  for  representing  insane  spouse  on  petition  to  sell  or 
mortgage    homestead,    §    12696. 

RAILROAD    COMMISSIONERS.     Operation     of     railroads. 

power   in   relation   to,    §    468. 
Rates,  copy  of  upon  whom  may  be  served,  §  489. 
Rates  fixed  by,  publication  of,  §  489. 
Rates,  fixing  of,  serving  copy  of,  §  489. 
Rates,  when  take  efifeot,  §  489. 
RAILROAD    CORPORATIONS.     Accommodations    for     pas- 
sengers, duty  to  provide,  §  481. 
Compressed  air,  right  of  steam  railroads  to  use,  §  465a. 
Construction,    amount    of   road   to   be    constructed    each 

year,   §   463. 
Construction,  forfeiture  for  want  of,   §  468. 
Construction,  to  be  commenced  within  what  time,  §  468. 
Contracts  for  right  to  use  other  roads,  may  execute,   § 

473rr. 
Crossings,  duty  as  to,  §  513. 

Electricity,   right   of   steam   railroads   to   use,    §    465r7. 
Electricity,    statute    authorizing   steam    roads   to    use,    § 

465fl,  note. 
Elevated  railroad,  franchise  for,  power  to  grant,  §  493. 
Foreign,  act     relating  to  rights  of,  §  405,  note. 
Foreign,  rights,  powers  and  liabilities,  §   407. 
Forfeiture  of  franchise  for  want  of  construction,  §  468. 
Forfeiture  of  franchise  for  want  of  operation,  §  468. 
Forfeiture  of  franchise  for  want  of  operation,  reversion 

of  lands,  §  468. 
Franchise,  forfeiture  for  want  of  operation,  §  468. 
Franchise,  forfeiture  of  for  want  of  construction,  §  468. 
Franchise,  reversion   of  land  on   forfeiture  for  want   of 

operation,    §    468. 
Highways,    duty    as    to,    §    513. 
Lease   of   other  railroads   by,   power  of,   §   473ffl. 
Operation,   act    compelling   by   railroads,    §    463,   note. 
Operation,   forfeiture   for  want   of,    §   468. 
Operation,  full,  what   constitutes,   §   468. 
Operation,  power  of  railroad  commissioners  as  to,  §  468. 
Operation,  reversion  of  lands  on  forfeiture  for  want  of, 

§    468. 
Operation,  road  to  be  kept  in,  §  468, 
Operation,  what  excuses,  §  468. 


168  RAILROAD    CORPORATIONS-REGISTRATION. 

Operation  where  road  constructed  above  certain  eleva- 
tion, §  468. 
Operation,  where  road  constructed  above  certain  eleva- 
tion, act  relating  to,  §  468,  note.  ' 
Passengers,  accommodations  for,  duty  to  provide,  §  481. 
Passengers,  duty  to  receive  and  transport,  §  481. 
Eates,  fixing  by  railroad   commissioners,   copy  of,   upon 

whom  served,  §   489. 
Eates,    fixed    by    railroad    commissioners,    posting    of,    § 

489. 
Eates   fixed   by   railroad   commissioners,   when   take   ef- 
fect,  §   489. 
Eates,  railroad  commissioners  fixing  to  serve  copy  of,  § 

489. 
Eunning  of  cars,  duty  as  to,   §   481. 
Starting  of  cars,  duty  as  to,  §  481. 
Survey  of,  map  of  to  be  filed  in  each  county,  §   513. 
Survey  of  road,  approval  of,  rights  on,  ^  513. 
Survey  of  road,  sui^ervisors  to  approve  or  reject,  §  513. 
Underground  road,  franchise  for,  power  to  grant,  §  493. 
Use  of  other  roads,  right  of,  §  473a. 
Width   of   road,   §    513. 
REAL     ESTATE.     Action     for     possession     without     notice 
where  right  of  re-entry,  §  793. 
Instrument   affecting   title,   recording  in   different   coun- 
ties,   §    1218. 
Ee-entry,  right  of,  how  exercised,  §  793. 
BECOBDEE:   See  Eegistration. 

Acknowledgments,  may  take,  §  1181. 
BECOEDING:   See  Eegistration. 

EEDEMPTION   from   sale   of   franchise   under   execution,   § 
392. 
Eight  of  redemption  of  property  subject  to  lien,  §  2903. 
Subrogation    of    person   redeeming   property   subject    to 
lien,   §  2903. 
BE-ENTRY,  right  of,  how  exercised,  §  793. 
BEGISTRATION.     Acknowledgment   of   instrument   by   cor- 
poration, §   1161. 
Certificate  of  place  where  summons  may  be  served,  ac- 
knowledgment not  necessary,  §  1163. 
Certificate    of    place    where    summons    may    be    served, 

change   of  residence,   filing  affidavit,   §   1163. 
Certificate  of  place  where  summons  may  be  served,  fee 
for  recording,  §   1163. 


REGISTRATION^— SOCIAL   CORPORATIONS.  169 

Certificates  of  places  where   summons   may  be   served, 

indexing,   §   1163. 
Instruments  to  be  acknowledged  before,  §   1161. 
Kecording  instruments  affecting  title  in  different  coun- 
ties,   §    1218. 
EELIGIOUS,    SOCIAL    AND    BENEVOLENT    CORPORA- 
TIONS.    Directors,  election  of,  §  593. 
Directors,  number  of,  §§  290,  593. 
Directors,  term  of  office  of,  §  290. 
Formation   of,  authorized,   §   593. 
Formation  of,  manner  of,  §  593. 
Power  to  hold  property,  §  595. 

Real  estate,  limit  upon  amount  that  can  be  held  by,  § 
595. 
REPAIRS,  hirer,  duty  of  to  make,  §  1929. 
RESIDENTS.     Nonresidents:  See  Assignments  for  Benefit  of 

Creditors. 
RETALIATORY  CLAUSE.     Foreign   insurance   corporation, 

§  453i. 
ROADS:   See  Wagon  Koad  Corporations. 

SALES:  See  Goodwill. 

SAVINGS  AND  LOAN    CORPORATIONS.     Capital    stock, 
all  to  be  subscribed,  §  580. 
Capital  stock,  amount  of  required,  §  580. 
Capital  stock,  amount  to  be  paid  in,  §  580. 
Capital  stock,  within  what  time  to  be  paid  in,  §  580, 
Certificate,  what  to  appear  before  issuance  of,  §  580. 
Unclaimed   deposits,   acts   relating  to,   §   583h,   note. 
Unclaimed    deposits,  penalty    for    failure    to  publish,  § 

583&. 
Unclaimed   deposits,  publishing  statement   of,   §   583&. 
Unclaimed   deposits,   statement   of,   bank   commissioners 
to  incorporate  in  reports,  §  583&. 
SECRET  SOCIETIES  not  governed  by  laws  relating  to  mu- 
tual assessment  corporations,  §  453p. 
SEDUCTION.     Wife,  daughter,  sister  or  servant  forbidden, 

§    49. 
SEPARATE  PROPERTY:   See  Husband  and  Wife. 
SHIPPING.     Kules  governing  vessels  passing  each  other,   § 

970. 
SOCIAL  CORPORATIONS:    See   Eeligious,  Social  and  Ben- 
evolent  Corporations. 
Civil  Code— 15 


170    SOCIETIES  FOR  PREVENTION  OF  CRUELTY— STEAMERS. 

SOCIETIES  FOE,  PREVENTION  OF  CRUELTY  TO  CHIL- 
DREN AND  ANIMALS.     Act  for  the  prevention 

of  cruelty  to  animals,  §  607,  note. 
Aid    to    be    given    to    by    magistrates,    police,    sheriffs, 

etc.,  §  607r. 
Association  already  formed,  code  applies  to,  §  607d. 
Association   with   name   similar   to   pre-existing   society, 

code  does  not  apply  to,  §  607(/. 
Children  may  be  arrested  and  brought  before  court  for 

examination  when,  §  607g. 
Children    may    be    taken    from    person    having    custody, 

when,  §  607y. 
Children  taken  from  custody  of  another,  how  disposed 

of,   §   607g. 
Compensation,   monthly   allowance   to   by   supervisors,    § 

607e. 
Complaints  for  cruelty  to  children  or  animals,  §  6075. 
Fines,    penalties    and     forfeitures     inure   to   benefit   of, 

when,  §  607e. 
Formation,   majority   of   corporators  to   be   citizens   and 

residents  of  state,  §  607. 
Formation   of,   authorized,   §   607. 
Formation  of,  number  of  corporators,  §  607. 
Members   and   officers   acting   as   police   officers,   powers 

of,  §  607A 
Members  and  officers  acting  as  police  officers,  resistance 

to,  a  misdemeanor,   §   607f. 
Members   and   officers   acting  as  police   officers  to   show 

badge,  §  607f. 
Members   and   officers   may  act   as  police   officers  when, 

§   607r. 
Pre-existing  corporations,  provisions  of  code  extend  to, 

§  607rf. 
Proceedings  for  welfare  of  child,  institution  of,  §  607g. 
Property,  limit  upon  amount  that  can  be  held  by,  §  607a. 
Property,  'power  to  receive  and  dispose  of,  §  607a. 
Prosecution  of  persons  guilty  of  cruelty,   §   6076. 
SPECIFIC  PERFORMANCE,  when  may  be  "granted,  §  3366. 
SPECIFIC  RELIEF,  when  may  be  granted,  §  3366. 
STAGE  COMPANIES,  baggage,  amount  of  to  be  carried  by, 

§  2180. 
STATUTE  OF  FRAUDS.     What  agreements  to  be  in  writ- 
ing, §  1624. 
STEAMERS:   See  Shipping. 


STOCKHOLDERS— TELEPHONE    CORPORATIONS.  171 

STOCKHOLDERS:    See   Corporations. 

STORAGE:    See   Warehousemen. 

SUBROGATION.     Person  redeeming  property  subject  to  lien, 

subrogation  of,  §  2903. 
SUCCESSION.     Advancements,   death   of  beneficiary,   effect 
on  lieirs,  §   1399. 
Advancements,  effect  of  on  distributive  sliare,  §  1399. 
Death   of  beneficiary,  rights   of  heirs,   §   1310. 
Escheat  of  property,  §§  1405,  1406. 

Illegitimate  child,  where  legitimated  by  subsequent  mar- 
riage, §  1388. 
Illegitimate  child,  where  not  legitimated,  §   1388. 
Murder  of  decedent,  one  convicted  of  not  to  succeed,  § 

1409. 
Proceedings  by  attorney  general  where  succession  to  es- 
tate not  claimed,  §§  1405,  1406. 
Rules  of  where  one  dies  intestate,  §  1386. 
SUMMONS.     Certificate   of   place   where    summons    may   be 
served,  §   1163. 
Certificate  of  place  where  may  be  served,   affidavit   on 

change  of  residence,  §  1163. 
Foreign  corporations:   See  Foreign  Corporations. 
SUPERVISORS.     Franchises  for  roads  for  horseless  vehicles, 
§  524. 
Tolls:   See  Wagon  Eoad  Corporations. 

TELEPHONE   CORPORATIONS:    See   Telegraph   and   Tele- 
phone Corporations. 
TELEGRAPH  AND  TELEPHONE  CORPORATIONS.     Con- 
struction of  lines  authorized,  §  536. 

Duty  to  deliver  messages,  §  2161. 

Franchises,  property  or  rights  of,  sale,  lease  or  assign- 
ment  of,  §  540. 

Highway,  right  to  erect  poles  on,  granted  to,   §   536. 

Injury   to   property   of,   liability   for,   §§   537,   538. 

Lease,  sale,  or  assignment  of  property,  rights  and  fran- 
chise, §  540. 

Poles,  right   to   erect   granted   to,   §   536. 

Property  of,  injury  to,  liability  for,   §§   537,  538. 

Eights  of  way  granted  to,  §  536. 

Subaqueous  cable,  liability  of  vessel  for  injury  to,  §  537. 

Subaqueous  cable,  notice  of  place  where  it  lies.  §  539. 

Vessel,  injury  by  to  subaqueous  cable  of,   liability  for, 
§§   537,  539. 


172  TENANTS— WAGON   ROAD   CORPORATIONS. 

TENANTS:  See  Landlord  and  Tenant. 
THEATERS:   See  Amusements. 

All  citizens  to  have  equal  rights,  §  51. 

Denial  of  equal  rights,  punishment,  §  52. 

Persons  may  be  excluded  from  when,  §  53. 

Eefusal  of  admission  to  places  of  amusement,  damages, 

§  54. 
■Refusal  of  admission  to,  unlawful,  §  53. 
THRESHING-MACHINES,  liens  of  laborers  on:   See  Liens. 
TITLE,   instruments   affecting,   recording   in   different   coun- 
ties,  §   1218. 
TITLE    INSURANCE    COMPANIES.     Capital    may    be    in- 
vested in  plant,   §  421,  sub.   5. 
Plant  to  be  deemed  an  asset  in  statements,  §  421,  sub. 
5. 
TOLL  ROADS:   See  Wagon  Road  Corporations. 
TOLLS:   See  Bridge,  Ferry,  Wharf,  Chute  or  Pier  Corpora- 
tions; Wagon  Road  Corporations. 
TRUSTEES,  mingling  property,  liability  of,  §  2236. 
TRUSTS,    corporation    when    only    can    accept    and    execute 
trust,  §  2901/2.  . 
Corporation  when  only  can  use  "trust"  or  "trustee" 
as  part  of  name,  §  290^^, 

UNDERGROUND  ROADS,  power  to  grant  franchise  to 
build,   §   493. 

VENDOR  AND  VENDEE:   See  Covenants;  Deeds. 
VESSELS:   See  Shipping. 

WAGON  ROAD  CORPORATIONS.  Bridges  and  ferries, 
erecting  and  repairing,  §  514. 

Horseless  vehicles,  franchises  for,  consent  of  majority 
of  frontage,  §  524. 

Horseless   vehicles,  franchise,   power  to   grant,   §   524. 

Mortgage,  power  to  execute,  §  522. 

Mortgage,  two-thirds  vote  of  capital  stock  necessary 
§  022. 

Toll-gatherer  may  detain  persons  until  toll  paid    §  517. 

Toll-gatherer,  punishment  for  taking  illegal  tolls,  §  518. 

Toll-gatherer,  punishment  for  unreasonably  delaying  per- 
son, §  518. 

Tolls,  illegal^   punishment   for   taking,    §§    514,   518. 

Tolls,  maximum  and  minimum  rate  of,  §  514. 

Tolls,  supervisors  to  fix  rate  of,   §   514. 


WARDS-WATERS.  173 

l^AEDS:   See  Guardian  and  "Ward. 

WAREHOITSES.     Eeeeipts,  negotiable,  property  delivered  to 
be  indorsed  on,  §  1858c. 

Eeeeipts.  non-negotiable,  to  be  so  stamped,   §  I8086. 
"WAEEHOUSEMEN.     Act  relating  to  warehouse  and  whar- 
finger receipts  and  other  matters  pertaining  there- 
to, §   1858,  note. 

Felony,  violation  of  law  by,  §  1858f. 

Fire,  when  only  liable  for  loss  by,  §   1858e. 

Penalties  and  liabilities  for  violating  statute,   §  1858A 

Property  not  to  be  removed  without  consent  of  person 
holding  receipt,  §  1858a, 

Eeceipt,  consent  of  holder  necessary  to  removal  of  prop- 
erty, §  1858a. 

Eeeeipts,  negotiable  and  non-negotiable,  may  be  issued, 
§   18586. 

Eeceipt,    negotiable,    claim   not   indorsed    on,   not   to   be 
allowed,  §  1858c. 

Eeeeipts,    negotiable,    indorsement    of,    how    made    and 
effect  of,  §  18586. 

Eeeeipt,    non-negotiable,    property   not    to   be    delivered 
except  on  order,  §  1858d. 

Eeeeipts  not  to  be  issued  unless  property  in  warehouse, 
§  1858. 

Eeceipt,  second,  not  to  be  issued  while  first  outstanding, 
§  1858. 

Eeeeipts,  warehousemen  violating  law  regarding,  liabil- 
"ity  of,  §  1858f. 

Eeceipt,   what   to   state,    §    18586. 
WATER  CORPORATIONS.     Bridges,  duty  to  construct  and 
keep  in  repair,  §  551. 

Bridges,   failure  to   construct   or  repair,  proceedings    § 
551. 

Canals,  flumes,  etc.,  not  to  obstruct  highways,   §  551. 

Distinctions  not  to  be  made  in  supplying  water,  §  549. 

Duty  to  supply  water  on  demand,  §  549. 

Fire,  water  to  be  furnished  free  in  case  of,  §  549. 

Fire,  water  to  be  furnished,  in  what  cases  of,  §  549. 

Eates  to  be  reasonable,  §   549. 

Supervisors,   power   to   prescribe   rules   for   delivery   of 
water,  §  549. 
WATERS.     Owners  of  ditch,  flume,  etc.,  in  common,  action 
for,  form  of^  parties,  fees  and  costs,  §  843. 


174  WATERS— WRITINGS. 

Owners   of   ditch,   flume,   etc.,   in   common,  liability  for 
maintaining  and  repairing,  §  842. 

Owners    of    ditch^    flume,    etc.,    in   common,    liability    of 
co-owners,  how  enforced,  §  843. 
WHAEF     CORPORATIONS:      See     Bridge,     Ferry,     Wharf, 

Chute  or  Pier  Corporations. 
WHARFINGERS:   See  Warehousemen. 

WILLS.     Advancement,  death  of  beneficiary  receiving,  effect 
on  heirs,  §  1399. 

Advancements,  effect  on  distributive  share,  §§  1395,  1396. 

Bequests    may  be  made  to  whom,   §   1275. 

Child  born  after  making  of  will,  rights  of,  §  1300. 

Conveyance    by    heir    valid    unless    will    proved    within 
four  years,  §  1364. 

Corporations,  when  only  can  take  under,  §  1275. 

Death    of    beneficiary    during    testator's    life,    right    of 
descendants,    §    1310. 

Executed,  how,   §   1276. 

Foreign,  validity  of  in  this  state,  §  1285. 

Intestate,  rules   of   descent,   §    1386. 

Law  governing  validity   and   interpretation,   §   1376. 

Marriage  revokes  will  of  woman,   §   1300. 

Marriage,   will  revoked   by   not   revived   by   subsequent 
death  of  husband,  §  loOO. 

Nuncupative  need  not  be  written,   §   1276. 

Pretermitted   child   or  issue   of  child,  rights  of,   §   13'07, 

Succession:    See   Succession. 

Technical  words,  construction   of,   §   1327. 

Who   may   take   iinder,   §    1275. 

Written,  to  be,  §  1276. 
WORDS    AND    PHRASES.     Technical    words    in    will,    con- 
struction of,   §   1327. 
WRITINGS.     Action    to    obtain    judgment    proving    instru- 
ment, §  1203. 


THE 


CIVIL    CODE 


OF  THE 


STATE  OF  CALIFORNIA, 


AS   ENACTED   IN   1S72,    AMENDED    AT   SUBSEQUENT    SESSIONS, 

AND    ADAPTED    TO    THE    CONSTITUTION   OF    1S79  ;    AND 

AN  APPENDIX  OF   GENERAL  LAWS   UPON  THE 

SUBJECTS    EMBRACED    IN    THE    CODE. 


EDITED    BY 

JAMES   H.  DEEKING, 

Of  the  San  Francisco  Bar. 
STATUTORY  HISTORY  AND  CITATION  DIGEST  BY 

WALTER    S.    BRANN, 

Of  the  San  Francisco  Bar. 


SAN   FRANCISCO. 

BAN  CROFT- WHITNEY     CO. 

La-.     Publishers   and   Law  Booksellers. 
1903. 


Copyright  1903. 
BANCEOFT-WHITNEY   CO. 


San  Fkancisco  : 
A.   MuEDOCK   &   Co., 

pKlyTFP.S. 

iy03. 


CONTENTS. 


Division  First. 

BECTIONS 

PART   I.     PERSONS    25-42 

II.     PERSONAL   RIGHTS    43-50 

III.     PERSONAL    RELATIONS    55-276 

Title  I.     Marriage    55-181 

Chapter  I.     The  contract  of  marriage 55-80 

II.     Divorce    82-148 

III.     Husband  and   wife 155-181 

Title  II.     Parent    and    Child 193-230 

Chapter  I.     By  birth   193-211 

II.     By  adoption    221-230 

Title   III.     Guardian    and    Ward 236-258 

IV.     Master   and    Servant 264-276 

PART   IV.     CORPORATIONS    283-653 

Title  I.     General     Provisions    Applicable    to    all 

Corporations    283-403 

Chapter  I.     Formation   of    corporations 283-321a 

II.     Corporate    stock    322-349 

III.  Corporate  powers 354-393 

IV.  Extension  and   dissolution  of  cor- 

porations       399-403 

Title  II.     Insurance  Corporations    414-452 

Chapter  I.     General  provisions    414-420 

II.     Fire    and    marine    insurance    cor- 
porations      424-432 

III.     Mutual   life,   health,   and   accident 

insurance  corporations    437-452 


CONTENTS. 

SECTIONS 

Title  III.     Railroad    Corporations 454-494 

Chapter  I.     Officers  and  corporate  stock 454-459 

II.     Enumeration  of  powers 465-478 

III.     Business,  how  conducted 479-494 

Title  IV.  Street   Railroad   Corporations 497-511 

V.  Wagon    Road   Corporations 512-523 

VI.  Bridge,  Ferry,  Wharf,  Chute,  and  Pier 

Corporations 528-531 

VII.  Telegraph   Corporations    536-541 

VIII.  Water  and  Canal  Corporations 548-552 

IX.  Homestead   Corporations    557-566 

X.  Savings  and    Loan  Corporations 571-583a 

XI.  Mining  Corporations    584-587 

XII.  Religious,  Social,  and  Benevolent  Cor- 
porations       593-605 

XIII.  Cemetery  Corporations 608-616 

XIV.  Agricultural    Fair  Corporations 620-622 

XV.  Gas  Corporations    628-632 

XVI.     Land   and    Building   Corporations 633-6481^ 

XVII.     Colleges  and  Seminaries  of  Learning..   649-651 
XVIII.     Consolidation  of  Colleges  and   Institu- 
tions of   Higher   Education 652-653 


Division  Second. 

part    i.    property  in  general 654-749 

Title  I.     Nature  of  Property 654-663 

I             II.     Ownership    669-742 

Chapter  I.     Owners    669-672 

11,     Modifications  of  ownership 678-726 

III.  Rights   of  owners 732-733 

IV.  Termination    of    ownership 739-742 

Title  111.     General    Definitions    748-749 


CONTENTS.  5 

SECTIONS 

PART   II.     REAL  OR  IMMOVABLE  PROPERTY..  755-940 

Title  I.     General   Provisions    755 

II.     Estates  in    Real   Property 761-811 

Chapter  I.     Estates  in  general 761-781 

II.     Termination   of   Estates 789-793 

III.     Servitudes    801-811 

Title  III.     Rights  and  Obligations  of  Owners 818-841 

Chapter  I.     Rights    of   owners 818-834 

II.     Obligations  of  owners 840-841 

Title  IV.     Uses  and  Trusts 847-871 

I  V.     Powers.     (Repealed.)   878-940 

PART   III.     PERSONAL     OR     MOVABLE     PROP- 
ERTY       946-994 

Title   I.     Personal    Property    in   General 946-947 

II.     Particular  Kinds  of  Personal  Property..  953-994 

Chapter  I.     Things  in  action 953-954 

II.     Shipping   960-973 

III.  Products  of  the  mind 980-985 

IV.  Other  kinds  of  personal  property. .  991-994 

PART    IV.     ACQUISITION    OF    PROPERTY 1000-1425 

Title   I.     Modes  in  which   Property  may  be  Ac- 
quired       1000-1001 

II.     Occupancy    1006-1007 

III.     Accession    •. 1013-1033 

Chapter  I.     To  real  property 1013-1019 

II.     T6   personal   property 1025-1033 

Title  IV.     Transfer     1039-1231 

Chapter  I.     Transfer  in  general '1039-1085 

II.     Transfer  of  real  property 1091-1115 

III.  Transfer  of  personal  property..  1135-1153 

IV.  Recording  transfers  of  real  prop- 

erty       1158-1217 

V.     Unlawful  transfers    1227-1231 


6  CONTENTS.  ■ 

SECTIONS 

Title  V.     Homesteads    1237-1269 

Chapter  I.     General   provisions    1237-1261 

II.     Homestead    of    the    head    of    a 

family    1262-1265 

III.     Homestead  of  other  persons 1266-1269 

Title  VI.     Wilis   1270-1377 

Chapter  I.     Execution     and     revocation     of 

wills   1270-1313 

II.     Interpretation  of  wills 1317-1351 

III.     General    provisions    relating    to 

wills     1357-1377 

Title  Vli.     Succession    1383-1408 

VIII.     Water    Rights    1410-1422 

IX.     Hydraulic  Mining   1424-1425 


Division  Third. 
part  i.    obligations  in  general 1427-1543 

Title  I.     Definition  of  Obligations 1427-1428 

II.     Interpretation   of   Obligations 1429-1451 

Chapter  I.     General  rules  of  interpretation..  1429 

II.     Joint  or  several  obligations 1430-1432 

III.  Conditional  obligations    1434-1442 

IV.  Alternative  obligations    1448-1451 

Title  III.     Transfer  of  Obligations 1457-1467 

IV.     Extinction    of   Obligations.! 1473-1543 

Chapter  I.     Performance    1473-1479 

II.     Offer  of  performance 1485-1505 

III.     Prevention    of    performance    or 

offer   1511-1515 

rv.     Accord   and   satisfaction 1521-1524 

V.     Novation   1530-1533 

VL     Release    1541-1543 


CONTENTS.  7 

SECTIONS 

PART  II.     CONTRACTS    1549-1701 

Title  I.     Nature  of  a  Contract 1549-1615 

Chapter  I.    Definition   1549-1550 

II.     Parties    1556-1559 

III.     Consent  1565-1589 

rv.     Object 1595-1599 

V.     Consideration    1605-1615 

Title  II.     Manner  of  Creating  Contracts 1619-1629 

III.  Interpretation  of  Contracts 1635-1661 

IV.  Unlawful  Contracts   1667-1676 

V.     Extinction  of  Contracts 1682-1701 

Chapter  I.     Contracts,  how  extinguished....  1682 

II.     Rescission    1688-1691 

III.     Alteration   and    cancellation 1697-1701 

PART  III.     OBLIGATIONS   IMPOSED   BY   LAW  1708-1715 

PART  IV.     OBLIGATIONS       ARISING       FROM 

PARTICULAR  TRANSACTIONS..    1721-3268 

Title  I.     Sale    1721-1798 

Chapter  I.    General  provisions   1721-1741 

II.     Rights    and    obligations    of    the 

seller   1748-1778 

III.  Rights    and    obligations    of    the 

buyer  1784-1786 

IV.  Sale  by  auction 1792-1798 

Title  II.     Exchange    1804-1807 

III.     Deposit   1813-1878 

Chapter  I.     Deposit  in  general 1813-1827 

II.     Deposit  for  keeping 1833-1872 

III.     Deposit  for   exchange 1878 

Title  IV.     Loan    1884-1920 

Chapter  I.    Loan  for  use 1884-1896 

II.     Loan  for  exchange 1902-1906 

in.     Loan  of  money 1912-1920 


8  CONTENTS. 

SECTIONS 

Title  V.     Hiring    1925-1959 

Chapter  I,     Hiring  in  general 1925-1935 

II.     Hiring  of  real  property 1941-1950 

III.     Hiring  of  personal  property....  1955-1959 

Title  VI.     Service 1965-2079 

Chapter  I.     Service   with   employment 1965-2003 

II.     Particular  employments    2009-2072 

III.     Service   without  employment...  2078-2079 

Title  VII.     Carriage   2085-2209 

Chapter  I.     Carriage  in  general 2085-2090 

II.     Carriage  of  persons 2096-2104 

III.  Carriage  of  property 2110-2155 

IV.  Carriage  of  messages 2161-2162 

V.     Common  carriers  2168-2209 

Title  VIII.     Trust    2215-2289 

Chapter  I.     Trusts  in  general 2215-2244 

II.     Trusts   for  the  benefit  of  third 

persons    2250-2289 

Title  IX.     Agency   2295-2389 

Chapter  I.     Agency  in  general 2295-2356 

II.     Particular  agencies 2362-2389 

Title  X.     Partnership    2395-2520 

CL  .yter  I.     Partnership  in  general 2395-2418 

II.     General  partnership  2224-2471 

III.  Special  partnership    2477-2510 

IV.  Mining  partnership  2511-2520 

Title  XI.     Insurance    2527-2766 

Chapter  I.     Insurance  in  general 2527-2649 

II.     Marine  insurance 2655-2746 

III.  Fire  insurance   2752-2757 

IV.  Life  and  health  insurance 2762-2766 

Title  XII.     Indemnity 2772-2781 

XIII.     Guaranty    2787-2866 

Chapter  I.     Guaranty  in  general 2787-2825 

II.     Suretyship    2831-2866 


CONTENTS.  9 

SECTIONS 

Title  XIV.     Lien    2872-3080 

Chapter  I.     Liens  in  general   2872-2913 

II.     Mortgage    2920-2972 

III.  Pledge     2986-3011 

IV.  Bottomry    3017-3029 

V.     Respondentia    3036-3040 

VI.     Other  liens    3046-3060 

VII.     Stoppage  in  transit   3076-3080 

Title  XV.     Negotiable    Instruments    3086-3262 

Chapter  I.     Negotiable  instruments    in    gen- 
eral      3086-3165 

II.     Bills  of  exchange   3171-3238 

III.  Promissory  notes    3244-3248 

IV.  Checks    3254-3255 

V.     Bank   notes   and   certificates   of 

deposit    3261-3262 

Title  XVI.     General   Provisions   3268 


Division  Fourth, 
part  i.    relief  3274-3423 

Title  I.     Relief   in    General 3274-3275 

II.     Compensatory  Relief 3281-3360 

Chapter  I.     Damages  in  general 3281-3294 

II.     Measure  of  damages 3300-3360 

Title  III.     Specific  and  Preventive  Relief 3366-3423 

Chapter  I.     General  principles  3366-3369 

II.     Specific  relief 33v  0-3414 

III.     Preventive  relief 3420-3423 

PART   II.     SPECIAL   RELATIONS  OF   DEBTOR 

AND  CREDITOR 3429-3473 

Title  i.     General  Principles 3429-3433 

II.     Fraudulent  Instruments  and  Transfers  3439-3442 
III.     Assignments  for  the  Benefit  of  Cred- 
itors     3449-3473 


10  CONTENTS. 

SECTIONS 

PART   III.     NUISANCE    3479-35U3 

Title  I.     General    Principles    3479-3484 

il.     Public  Nuisances 3490-3495 

III.     Private  Nuisances 3501-3503 

PART  IV.     MAXIMS  OF  JURISPRUDENCE 3509-3543 


SUMMARY   OF   CONTENTS. 

SECTIONS 

PRELIMINARY  PROVISIONS 2-     21 

DIVISION   I.     RELATING  TO  PERSONS 25-653 

Parti.     Persons    25-     42 

II.     Personal    Rights    43-     50 

III.  Personal    Relations 55-276 

IV.  Corporations    283-653 

DIVISION    II.     RELATING  TO  PROPERTY 654-1425 

Part  I.     Property   in  General    654-749 

1 1.     Real   Property    755-  940 

III..  .Personal    Property    946-994 

IV.     Acquisition  of  Property 1000-1425 

DIVISION    III.     RELATING  TO   OBLIGATIONS.  1427-3268 

Part  I.     Obligations  in  General    1427-1^43 

II.     Contracts   1549-1701 

III.  Obligations  Imposed  by  Law 1708-1715 

IV.  Arising  from  Particular  Transactions..  1721-3268 

DIVISION  IV.  GENERAL  PROVISIONS  RE- 
LATING TO  THE  PRECED- 
ING  PROVISIONS    3274-3543 

Part  I.     Relief   3274-3423 

II.     Relations  of  Debtor  and  Creditor 3429-3473 

III.  Nuisance    3479-3503 

IV.  Maxims  of  Jurisprudence 3509-3543 


THE  CIVIL  CODE 


OF    THE 


STATE  OF  CALIFOBNIA. 


IN   FOUR  DIVISIONS. 


THE  CIVIL  CODE 


OF    THE 


STATE   OF  CALirOIi:N^IA. 


AN  ACT  TO  ESTABLISH  A  CIVIL  CODE. 
[Approved  March  21st,  1872.] 


The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

TITLE  OP  THE  ACT. 

§  1.     This  act  shall  he  known  as  the  Civil  Code  of  the 
state  of  California,  and  is  in  four  divisions,  as  follows:  — 

I.  The  first  relating  to  persons. 

II.  The  second  to  property. 

III.  The  third  to  obligations. 

IV.  The  fourth  contains  general  provisions  relating 

to  the  three  preceding  divisions.     En.   March 
21,  1872. 

Act,  how  cited:    See  sec.  21,  post. 


§§2-4  PRELIMINARY    PROVISIONS.  14 


PRELIMINARY    PROVISIONS. 

§    2.  When  this  code  takes  effect. 

§    3.  Not   retroactive. 

§    4.  Rules  of  construction. 

§    5.  Provisions  similar  to  existing  laws,  how  construed. 

§    C.  Actions,  etc.,  not  affected. 

§    7.  Holidays. 

§    8.  Same. 

§    9.  Business  days. 

§  10.  Computation  of  time. 

§  11.  Certain  acts  not  to  be  done  on  holidays, 

§  12.  Joint  authority  construed. 

§  13.  Words  and  phrases,  how  construed. 

§  14.  Certain  terms  defined. 

§  15.  Good  faith,  what  constitutes.      (Repealed.) 

§  16.  Degrees  of  care  and  diligence.      (Repealed.) 

§  17.  Degrees  of  negligence.      (Repealed.) 

§  18.  Notice,  actual  and  constructive. 

§  19.  Constructive  notice,  when  deemed. 

1  20.  Effect  of  repeal. 

§  21.     This  act,  how  cited. 

§2.  When  this  code  takes  effect.  This  code  takes  ef- 
fect at  twelve  o'clock  noon  on  the  first  day  of  January, 
eighteen  hundred  and  seventy-three.     En.  March  21,  1872. 

Effect  of  codes  generally:  See  Pol.  Code,  sees.  4478  et 
seq. 

Similar  provision  in  other  codes  of  California:    See  sec. 

2  thereof. 

Publication  of  the  codes:     See  Pol.  Code,  sec.  4494. 

§  3.     Not  retroactive.     No  part  of  it  is  retroactive,  un- 
less expressly  so  declared.    En.  March  21,  1872. 
.CaI.Rep.Cit.  95,  201;  106,  680;  133,  527. 

§  4.  Rules  of  construction.  The  rule  of  the  common 
law,  that  statutes  in  derogation  thereof  are  to  be  strictly 
construed,  has  no  application  to  this  code.  The  code  es- 
tablishes the  law  of  this  state  respecting  the  subjects  to 
which  it  relates,  and  its  provisions  are  to  be  liberally  con- 
strued with  a  view  to  effect  its  objects  and  to  promote 
justice.     En.  March  21,  1872. 

Cal.Rep.Cit.     51,  257;      54,  619;      66,  434;      67,  386;     69,  370; 

74,  590;      75,     56;      98,  551;   104,  299;   104,  302;   105,  558; 

107,       4;   123,  201;   124,  397;   125,     68;   127,  126;   136,  142. 

Effect  of  codes  generally:  See  Pol.  Code,  sees.  4478  et 
seq. 


15  PRELIMINARY    PROVISIONS.  §§5-7 

§5.     Provisions  similar  to  existing  laws,  liow  construed. 

The  provisions  of  this  code,  so  far  as  they  are  substantially 
the  same  as  existing  statutes  or  the  common  law,  must  be 
construed  as  continuations  thereof,  and  not  as  new  enact- 
ments.   En.  March  21,  1872. 

Cal.Rep.Cit.     75,     69;      87,  647;     98,     33;   104,  584;   120,  491; 
120,  493;    120,  494;   121,  246;   130,  382;   136,  142. 

§  6.  Actions,  etc.,  not  affected.  No  action  or  proceed- 
ing commenced  before  this  code  takes  effect,  and  no  right 
accrued,  is  affected  by  its  provisions.    En.  March  21,  1872. 

Cal.Rep.Cit.   95,  202. 

Similar  provisions:  See  Code  Civ.  Proc,  sec.  8;  Pol. 
Code,  sec.  8. 

The  amendatory  act  of  March  30,  1874,  amendments 
1873-4,  181-269,  from  which  most  of  the  amendments  and 
new  sections  of  the  Civil  Code  are  taken,  contained  three 
additional  sections,  relating  to  its  effect,  as  follows: 

Sec.  286.  All  provisions  of  law  inconsistent  with  the 
provisions  of  this  act  are  hereby  repealed,  but  no  rights 
acquired  or  proceedings  taken  under  the  provisions  re- 
pealed shall  be  impaired  or  in  any  manner  affected  by 
this  repeal;  and  whenever  a  limitation  or  period  of  time 
is  prescribed  by  such  repealed  provisions  for  acquiring  a 
right  or  barring  a  remedy,  or  for  any  other  purpose,  has 
begun  to  run  before  this  act  takes  effect,  and  the  same  or 
any  other  limitation  is  prescribed  by  this  act,  the  time  of 
limitation  which  shall  have  run  when  this  act  takes  effect 
shall  be  deemed  part  of  the  time  prescribed  by  this  act. 

Effect  of  amendatory  act  as  to  other  acts  passed  at  ses- 
sion of  1871-2  is  shown  by  the  following  provision: 

Sec.  287.  With  relation  to  the  laws  passed  at  the  pres- 
ent session  of  the  legislature,  this  act  must  be  construed 
as  though  it  had  been  passed  at  the  first  day  of  the  present 
session;  if  the  provisions  of  any  law  passed  at  the  present 
session  of  the  legislature  contravene  or  are  inconsistent 
with  the  provisions  of  this  act,  the  provisions  of  such  law 
must  prevail. 

Sec.  288.  This  act  shall  take  effect  on  the  first  day  ot 
July,  one  thousand  eight  hundred  and  seventy-four. 

§7.  Holidays.  Holidays,  within  the  meaning  of  this 
code,   are    every    Sunday,    the   first   day    of   January,    the 


§§8-12  PRELIMINARY    PROVISIONS.  16 

twenty-second  day  of  February,  the  thirtieth  day  of  May, 
the  fourth  day  of  July,  the  ninth  day  of  September,  the 
first  Monday  of  September,  the  twenty-fifth  day  of  De- 
cember, every  day  on  which  an  election  is  held  through- 
out the  state,  and  every  day  appointed  by  the  president  of 
the  United  States,  or  by  the  governor  of  the  state,  for  a 
public  fast,  thanksgiving,  or  holiday.  If  the  first  day  of 
January,  the  twenty-second  day  of  February,  the  thirtieth 
day  of  May,  the  fourth  day  of  July,  the  ninth  day  of  Sep- 
tember, or  the  twenty-fifth  day  of  December  shall  fall 
upon  a  Sunday,  the  Monday  following  is  a  holiday.  En. 
March  21,  1872.    Am'd.  1880,  9;  1889,  47;  1893,  186;  1897,  14. 

§  8.  Same.  If  the  first  of  January,  the  twenty-second 
of  February,  the  fourth  of  July,  or  the  twenty-fifth  of  De- 
cember falls  upon  a  Sunday,  the  Monday  following  is  a 
holiday.    En.  March  21,  1872. 

§  9.  Business  days.  All  other  days  than  those  men- 
tioned in  the  last  two  sections  are  to  be  deemed  business 
days  for  all  purposes.    En.  March  21,  1872. 

See  sec.  11. 

§  10.  Computation  of  time.  The  time  in  which  any  act 
provided  by  law  is  to  be  done  is  computed  by  excluding 
the  first  day  and  including  the  last,  unless  the  last  day  is 
a  holiday,  and  then  It  is  also  excluded.    En.  March  21,  1872. 

Cal.Rep.Cit.   107,  284;   118,  88;   119,  88;   131,  594. 

Time,  how  computed,  and  year,  week,  and  day  defined: 
See  Pol.  Code,  sees.  3255  et  seq. 

§  11.  Certain  acts  not  to  be  done  on  holidays.  When- 
ever any  act  of  a  secular  nature,  other  than  a  work  of 
necessity  or  mercy,  is  appointed  by  law  or  contract  to  be 
performed  upon  a  particular  day,  which  day  falls  upon  a 
holiday,  it  may  be  performed  upon  the  next  business  day 
with  the  same  effect  as  if  it  had  been  performed  upon  the 
day  appointed.     En.  March  21,  1872. 

Cal.Rep.Cit.   110,  551 ;   136,  193 ;   136,  256. 

§  12.  Joint  authority  construed.  Words  giving  a  joint 
authority  to  three  or  more  public  ofiicers  or  other  persons 
are  construed  as  giving  such  authority  to  a  majority  of 


17  PRELIMINARY    PROVISIONS.  §§  13,  X4 

them,  unless  it  is  otherwise  expressed  in  the  act  giving  the 
authority.     En.  March  21,  1872. 
Cal.Rep.Cit.  100,  132. 

§  13.  Words  and  phrases,  how  construed.  Words  and 
phrases  are  construed  according  to  the  context  and  the 
approved  usage  of  the  language;  but  technical  words  and 
phrases,  and  such  others  as  may  have  acquired  a  peculiar 
and  appropriate  meaning  in  law,  or  are  defined  in  the  suc- 
ceeding section,  are  to  be  construed  according  to  such 
peculiar  and  appropriate  meaning  or  definition.  En.  March 
21,  1872. 

Cal.Rep.Cit.  75,  73;   131,  435;   136,  464;   138,  366. 

Words  and  phrases,  how  construed. — The  above  is  the 
general  rule  with  regard  to  the  construction  of  words, 
whether  in  contracts,  statutes,  or  constitutions.  The  mean- 
ing to  be  given  to  words  in  contracts  is  provided  for  in 
this  code,  sees.  1644,  1645,  and  in  the  Code  of  Civil  Pro- 
cedure, sec.  1861. 

§  14.  Certain  terms  defined.  Words  used  in  this  code 
in  the  present  tense  include  the  future  as  well  as  the  pres- 
ent; words  used  in  the  masculine  gender  include  the 
feminine  and  neuter;  the  singular  number  includes  the 
plural,  and  the  plural  the  singular;  the  word  person  in- 
cludes a  corporation  as  well  as  a  natural  person,  county 
includes  city  and  county;  writing  includes  printing  and 
typewriting;  oath  includes  affirmation  or  declaration;  and 
every  mode  of  oral  statement,  under  oath  or  affirmation, 
is  embraced  by  the  term  "testify,"  and  every  written  one 
in  the  term  "depose;"  signature  or  subscription  includes 
mark,  when  the  person  cannot  write,  his  name  being  writ- 
ten near  it,  by  a  person  who  writes  his  own  name  as  a 
witness;  provided,  that  when  a  signature  is  by  mark  it 
must  in  order  that  the  same  may  be  acknowledged  or  may 
serve  as  the  signature  to  any  sworn  statement  be  wit- 
nessed by  two  persons  who  must  subscribe  their  own 
names  as  witnesses  thereto.  The  following  words  have  in 
this  code  the  signification  attached  to  them  in  this  section, 
unless  otherwise  apparent  from  the  context: 

1.  The  word  "property"  includes  property  real  and  per- 
sonal ; 


§§  15-19  PRELIMINARY    PROVISIONS.  18 

2.  The  words  "real  property"  are  coextensive  with  lands, 
tenements,  and  hereditaments; 

3.  The  words  "personal  property"  include  money,  goods, 
chattels,  things  in  action,  and  evidences  of  debt; 

4.  The  word  "month"  means  a  calendar  month,  unless 
otherwise  expressed; 

5.  The  word  "will"  includes  codicil; 

6.  The  word  "section"  whenever  hereinafter  employed 
refers  to  a  section  of  this  code,  unless  some  other  code 
or  statute  is  expressly  mentioned.  En.  March  21,  1872. 
Am'd.  1873-4,  181;  1903,  407. 


Cal.Rep.Cit.  54,109;  62,184 
96,  600;  110,  396;  113,  353 
Subd.  4—131,  594;  133,  71 
58,  375. 


72,  57;  73,  322;  91,  248; 
135,  172.  Subd.  3  —  73,  322. 
134,  289;   135,  172.     Subd.   5— 


Similar  provisions:  Pol.  Code,  sec.  17;  Code  Civ.  Proc, 
sec.  17;  Pen.  Code,  sec.  7. 

Words  used  in  boundaries  are  defined  in  sees.  3903  to 
3907  of  the  Political  Code. 

§  15.  Good  faith,  what  constitutes.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  182. 

§  16.  Degrees  of  care  and  diligence.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  182. 

§  17.     Degrees   of   negligence.      (Repealed.)      En.   March 
21,  1872.     Rep.  1873-4,  182. 
Cal.Rep.Cit.  53,  460  ;   66.  590. 

§  18.     Notice,  actual  and  constructive.    Notice  is: 

1.  Actual — which  consists  in  express  information  of  a 
fact;  or, 

2.  Constructive — which  is  imputed  by  law.  En.  March 
21,  1872. 

Cal.Rep.Cit.   97,  584;   118,  260;   119,  451;   131,  587;   132,  593. 

§  19.  Constructive  notice,  when  deemed.  Every  person 
who  has  actual  notice  of  circumstances  sufficient  to  put 
a  prudent  man  upon  inquiry  as  to  a  particular  fact,  has 
constructive  notice  of  the  fact  itself  in  all  cases  in  which, 


19  PRELIMINARY    PROVISIONS.  §§  20,  21 

by  prosecuting  such  inquiry,  he  might  have  learued  such 

fact.    En  March  21,  1872.     Am'd.  1873-4,  182. 

Cal.Rep.Cit.     77,  456;      82,  626;     97,  584;   118,  260;   119.  451; 
120,  284;   122,  101;   122,  521;   123,  166;   128,  224;   131,  587. 

Constructive  notice — Recording  instruments:  See  post, 
sec.  1213. 

§  20.  Effect  of  repeal.  No  statute,  law,  or  rule  is  con- 
tinued in  force  because  it  is  consistent  with  the  provisions 
of  this  code  on  the  same  subject;  but  in  ail  cases  pro- 
vided for  by  this  code,  all  statutes,  laws,  and  rules  hereto- 
fore in  force  in  this  state,  whether  consistent  or  not  with 
the  provisions  of  this  code,  unless  expressly  continued  in 
force  by  it,  are  repealed  or  abrogated. 

This  repeal  or  abrogation  does  not  revive  any  former 
law  heretofore  repealed,  nor  does  it  affect  any  right  al- 
ready existing  or  accrued,  or  any  action  or  proceeding 
already  taken,  except  as  in  this  code  provided.  En.  March 
21,  1872. 

Cal.Rep.Cit.  68,  303 ;   96,  493  ;   109,  580 ;   121,  364. 

Similar  provisions:  Pol.  Code,  sec.  18;  Code  Civ.  Proc, 
sec.  18. 

Statutes  continued  in  force:  See  sec.  19  of  the  Political 
Code  and  Penal  Code,  and  Statutes  in  force. 

Vested  rights:     See  ante,  sec,  6. 

§21.  This  act,  how  cited.  This  act,  whenever  cited, 
enumerated,  referred  to,  or  amended,  may  be  designated 
simply  as  "The  Civil  Code,"  adding,  when  necessary,  the 
number  of  the  section.    En.  March  21,  1872. 

Title  of  the  act:     See  ante,  sec.  1. 


DIVISION   FIRST. 


Part  I.  Persons,   §§  25-42. 

II.  Personal  Rights,   §§  43-50. 

III.  Personal  Relations,   §§  55-276. 

TV.  Corporations,   §§  283-653. 


PART   I. 


PERSONS. 

§  25.  Minors,  who  are. 

§  26.  Periods  of  minority,  how  calculated. 

I  27.  Adults,  who  are. 

1  28.  Status  of  minors,  how  changed.      (Repealed.) 

§  29.  Unborn  child. 

I  30.  Persons  made  adults  by  other   states,   considered  as   such   in 

this    state,    when    domiciled    herein.       (Repealed.) 

§  31.  Minors  by  the  laws  of  other  state  or  country,  how  considered 

in  this  state.     (Repealed.) 

§  32.  Custody  of  minors. 

§  33.  Minors  cannot  give  a  delegation  of  power. 

§  34.  Contracts  by  minors. 

§   35.  When  minor  may  disaflBrm. 

§  36.  Cannot  disafllrm  contract  for  necessaries. 

§  37.  Nor  certain  obligations. 

§  38.  Contracts  of  persons  without  understanding. 

I  39.  Contracts  by  persons  of  unsound  mind. 

§  40.  Powers  of  persons  whose  incapacity  has  been  adjudged. 

I  41.  Minors    liable    for    wrongs,    but    not    liable    for    exemplary 

damages. 

S  42.  Minors  may  enforce  their  rights. 

§25.     Minors,  who  are.    Minors  are: 

1.  Males  under  twenty -one  years  of  age; 

2.  Females  under  eighteen  years  of  age.  En.  March  21, 
1872. 

Cal.Rep.Cit.   Subd.  2—119,   601. 

§  26.  Periods  of  minority,  how  calculated.  The  periods 
specified  in  the  preceding  section  must  be  calculated  from 
the  first  minute  of  the  day  on  which  persons  are  born  to 
the  same  minute  of  the  corresponding  day  completing  the 
period  of  minority.    En.  March  21,  1872. 

§27.  Adults,  who  are.  All  other  persons  are  adults. 
En.  March  21,  1872. 

§28.  Status  of  minors,  how  changed.  (Repealed.)  Eu. 
March  21,  1872.     Rep.  1873-4,  182. 

I  29.  Unborn  child.  A  child  conceived,  but  not  yet  born, 
is  to  be  deemed  an  existing  person,  so  far  as  may  be  neces- 


S§  30-a5  PERSONS.  24 

sary  for  its  Interests  In  the  event  of  its  subsequent  birth. 
En.  March  21,  1872. 

Cal.Rep.Cit.   87,  21;   132,  580. 

Posthumous  children,  rights  of:  See  post,  sees.  698,  739, 
1339,  1403. 

§  30.  Persons  made  adults  by  other  states,  considered 
as  such  in  this  state,  when  domiciled  herein.  (Repealed.) 
En.  March  21,  1872.     Rep.  1873-4,  182. 

§31.  Minors  by  the  laws  of  other  state  or  country,  how 
considered  in  this  state.  (Repealed.)  En.  March  21,  1872. 
Rep.  1873-4,  182. 

§  32.  Custody  of  minors.  The  custody  of  minors  and 
persons  of  unsound  mind  is  regulated  by  Part  III  of  this 
division.    En.  March  21,  1872. 

§33.  Minors  cannot  give  a  delegation  of  power.  A 
minor  cannot  give  a  delegation  of  power,  nor  under  the 
age  of  eighteen,  make  a  contract  relating  to  real  property, 
or  any  interest  therein,  or  relating  to  any  personal  prop- 
erty not  in  his  immediate  possession  or  control.  En. 
March  21,  1872.    Am'd.  1873-4,  182. 

Cal.Rep.Cit.   74,  56;   115,  151. 

§  34.  Contracts  by  minors.  A  minor  may  make  any 
other  contract  than  as  above  specified,  in  the  same  manner 
as  an  adult,  subject  only  to  his  power  of  disaffirmance  un- 
der the  provisions  of  this  title,  and  subject  to  the  provi- 
sions of  the  titles  on  Marriage,  and  on  Master  and  Servant. 
En.  March  21,  1872.     Am'd.  1873-4,  183. 

Marriage:    See  sees.  56  et  seq. 

Master  and  servant:    See  sees.  264  et  seq. 

§  35.  When  minor  may  disaffirm.  In  all  cases  other 
than  those  specified  in  sections  thirty-six  and  thirty-seven, 
the  contract  of  a  minor,  if  made  whilst  he  is  under  the  age 
of  eighteen,  may  be  disafiirmed  by  the  minor  himself, 
either  before  his  majority  or  within  a  reasonable  time 
afterwards;  or,  in  case  of  his  death  within  that  period,  by 
ills  heirs  or  personal  representatives;  and  if  the  contract 
b<*  made  by  the  minor  whilst  he  is  over  the  age  of  eighteen. 


25  PERSONS.  §§  36-40 

it  may  be  disaffirmed  in  like  manner  upon  restoring  the 
consideration  to  the  party  from  whom  it  was  received,  or 
paying  its  equivalent.  En.  March  21,  1872.  Am'd.  1873-4, 
183. 

Cal.Rep.Cit.  66,  337;   89,  581;   123,  639;   123,  641. 

§  36.  Cannot  disaffirm  contract  for  necessaries.  A  minor 
cannot  disaffirm  a  contract,  otherwise  valid,  to  pay  the 
reasonable  value  of  things  necessary  for  his  support,  or 
that  of  his  family,  entered  into  by  him  when  not  under  the 
care  of  a  parent  or  guardain  able  to  provide  for  him  or 
them.     En.  March  21,  1872.    Am'd.  1873-4,  183. 

Cal.Rep.Cit.   123,   640. 

§37.  Nor  certain  obligations.  A  minor  cannot  disaffirm 
an  obligation,  otherwise  valid,  entered  into  by  him  under 
the  express  authority  or  direction  of  a  statute.  En.  March 
21,  1872. 

Cal.Rep.Cit.   123,   640. 

§  38.  Contracts  of  persons  without  understanding.  A 
person  entirely  without  understanding  has  no  power  to 
make  a  contract  of  any  kind,  but  he  is  liable  for  the  rea- 
sonable value  of  things  furnished  to  him  necessary  for  his 
support  or  the  support  of  his  family.  En.  March  21,  1872. 
Am'd.  1873-4,  183. 

.Cal.Rep.Cit.   85,  190;   110,  296;   134,  568. 

§  39.  Contracts  by  persons  of  unsound  mind.  A  con 
veyance  or  other  contract  of  a  person  of  unsound  mind, 
but  not  entirely  without  understanding,  made  oefore  his 
incapacity  has  been  judicially  determined,  is  subject  to 
rescission,  as  provided  in  the  chapter  on  Rescission  of  this 
code.     En.  March  21,  1872.     Am'd.  1873-4,  184. 

Cal.Rep.Cit.   85,  190;   110,  296. 

Rescission  of  contracts:  See  post,  sees.  1688-1691,  3406- 
3408. 

§  40.  Powers  of  persons  whose  incapacity  has  been  ad- 
judged. After  his  incapacity  has  been  judicially  deter- 
mined, a  person  of  unsound  mind  can  make  no  conveyance 
or  other  contract,  nor  delegate  any  power,  or  waive  any 
right,  until  his  restoration  to  capacity.  But  a  certificate 
Civ.  Code— 2 


§§  41,  42  PERSONS.  £0 

from  the  medical  superintendent  or  resident  physician  of 
the  insane  asylum  to  which  such  person  may  have  been 
committed,  showing  that  such  person  had  been  discharged 
therefrom  cured  and  restored  to  reason,  shall  establish  the 
presumption  of  legal  capacity  in  such  person  from  the  time 
of  such  discharge.  En.  March  21,  1872.  Am'd.  1877-8,  75. 
Cal.Rep.Cit.   57,  531;   87,  198;  110,  296. 

§41.  Minors  liable  for  wrongs,  but  not  liable  for  ex- 
emplary damages.  A  minor,  or  person  of  unsound  mind, 
of  whatever  degree,  is  civilly  liable  for  a  wrong  done  by 
him,  but  is  not  liable  in  exemplary  damages  unless  at  the 
time  of  the  act  he  was  capable  of  knowing  that  it  was 
wrongful.     En.  March  21,  1872. 

§42.  Minors  may  enforce  their  rights.  A  minor  may 
enforce  his  rights  by  civil  action,  or  other  legal  proceed- 
ings, in  the  same  manner  as  a  person  of  full  age,  except 
that  a  guardian  must  conduct  the  same.  En.  March  21, 
1872. 

Cal.Rep.Cit.  74,  55. 


PART    II. 


PERSONAL    RIGHTS. 

5  43.  General  personal  rights. 

§  44.  Defamation,  what. 

§  45.  Libel,  what. 

§  46.  Slander,  what. 

§  -47.  What  communications  are  privileged. 

§  48.  Malice  not  inferred. 

§  49.  Protection  to  personal  relations. 

§  50.  Right  to  use  force. 

§  43.  General  personal  rights.  Besides  the  personal 
rights  mentioned  or  recognized  in  the  Political  Code,  every 
person  has,  subject  to  the  qualifications  and  restrictions 
provided  by  law,  the  right  of  protection  from  bodily  re- 
straint or  harm,  from  personal  insult,  from  defamation,  and 
from  injury  to  his  personal  relations.     En.  March  21,  1872. 

Cal.Rep.Cit.   Ill,  45;   119,  601;   122,  256;   124,  199. 

Political  rights  and  duties:    See  Pol.  Code,  sees.  50-60. 

§  44.     Defamation,  what.    Defamation  is  effected  by: 

1.  Libel; 

2.  Slander.    En.  March  21,  1872. 
Cal.Rep.Cit.   70,   136. 

§45.  Libel,  what.  Libel  is  a  false  and  unprivileged 
publicaticfe  by  writing,  printing,  picture,  effigy,  or  other 
fixed  representation  to  the  eye,  which  exposes  any  person 
to  hatred,  contempt,  ridicule,  or  obloquy,  or  which  causes 
him  to  be  shunned  or  avoided,  or  which  has  a  tendency  to 
injure  him  in  his  occupation.    En.  March  21,  1872. 

Cal.Rep.Cit.  69,  528;   69,  529;   70,  275;   114,  272;   132,  227. 

Pleading  libel:    See  sees.  460,  461,  Code  Civ.  Proc. 

Privileged  publication:    See  sees.  47,  48,  infra. 

§  46.  Slander,  what.  Slander  is  a  false  and  unprivileged 
publication  other  than  libel,  which: 

1.  Charges  any  person  with  crime,  or  with  having  been 
indicted,  convicted,  or  punished  for  crime; 


§J47,  48  PERSONAL    RIGHTS.  2ii 

2.  Imputes  in  him  the  present  existence  of  an  infectious, 
contagious,  or  loathsome  disease; 

3.  Tends  directly  to  injure  him  in  respect  to  his  office, 
profession,  trade,  or  business,  either  by  imputing  to  him 
general  disqualification  in  those  respects  which  the  office 
or  other  occupation  peculiarly  requires,  or  by  imputing 
something  with  reference  to  his  office,  profession,  trade, 
or  business  that  has  a  natural  tendency  to  lessen  its  profit; 

4.  Imputes  to  him  impotence  or  a  want  of  chastity;  or, 

5.  Which,  by  natural  consequence,  causes  actual  dam- 
age.    En.  March  21,  1872. 

Cal.Rep.Cit.     67,     80;      68.  193;     70,  218;     82,  526;      84,  180; 
91,  111;    105,  320;   123,  159.       Subd.   2—122.     61.     Subd.   3— 
137,   343. 

§47.  What  communications  are  privileged.  A  privi- 
leged publication  is  one  made — 

1.  In  the  proper  discharge  of  an  official  duty. 

2.  In  any  legislative  or  judicial  proceeding,  or  in  any 
other  official  proceeding  authorized  by  law. 

3.  In  a  communication,  without  malice,  to  a  person  in- 
terested therein,  by  one  who  is  also  interested,  or  by  one 
who  stands  in  such  relation  to  the  person  interested  as  to 
afford  a  reasonable  ground  for  supposing  the  motive  for 
the  communication  innocent,  or  who  is  requested  by  the 
person  interested  to  give  the  information. 

4.  By  a  fair  and  true  report,  without  malice,  in  a  public 
journal,  of  a  judicial,  legislative,  or  other  public  official 
proceeding,  or  of  anything  said  in  the  course  thereof,  or  of 
a  verified  charge  or  complaint  made  by  any  penson  to  a 
public  official,  upon  which  complaint  a  warrant  shall  have 
been  issued. 

5.  By  a  fair  and  true  report,  without  rnalice,  of  the  pro- 
ceedings of  a  public  meeting,  if  such  meeting  was  lawfully 
convened  for  a  lawful  purpose  and  open  to  the  public,  or 
the  publication  of  the  matter  complained  of  was  for  the 
public  benefit.  En.  March  21,  1872.  Am'd.  1873-4,  184; 
1895,  167. 

Cal.Rep.Cit.     69.529;      69.627;     69.630;     93,     70;      93,236; 
137.  349.       Subd.   3  —  91,  112;   111,  611;   111,  612;   137,  349. 
Subd.   4—132,  229. 

§48.  IVlalice  not  inferred.  In  the  cases  provided  for  in 
subdivisions  three,  four,  and  five,  of  the  preceding  section, 


29  .      PERSONAL    RIGHTS  §§  49.  50 

malice  is  not  inferred  from  the  communication  or  publi- 
cation.    En.  March  21,  1872.     Am'd.  1895,  167. 
Cal.Rep.Cit.   70,  136;   93,  70;   132,  229. 

§49.  Protection  to  personal  relations.  The  rights  of 
personal  relation  forbid: 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a 
parent  from  his  child; 

2.  The  abduction  or  enticement  of  a  wife  from  her  hus- 
band, of  a  child  from  a  parent  or  from  a  guardian  entitled 
to  its  custody,  or  of  a  servant  from  his  master; 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or 
servant; 

4.  Any  injury  to  a  servant  which  affects  his  ability  to 
serve  his  master.    En.  March  21,  1872. 

Cal.Rep.Cit.   98,  582;    122,  256;   122,  257;   122,  259. 

Action  for  seduction:    See  sees.  374,  375,  Code  Civ.  Proc. 

§  50.  Right  to  use  force.  Any  necessary  force  may  be 
used  to  protect  from  wrongful  injury  the  person  or  prop- 
erty of  one's  self,  or  of  a  wife,  husband,  child,  parent,  or 
other  relative,  or  member  of  one's  family,  or  of  a  ward, 
servant,  master,  or  guest.  En.  March  21,  1872.  Am'd. 
1873-4,  184. 

Lawful  resistance  to  the  commission  of  offenses:  See 
Pen.  Code,  sees.  692-694. 


PAKT    III. 


PERSONAL  RELATIONS. 

Title  I.  Marriage,  §§  55-181. 

II.  Parent  and  Child,  §§  193-230. 

HI.  Guardian    and    Ward,    §§236-258. 

IV.  Master    and    Servant,    §§  264-276. 


TITLE    I. 

MARRIAGE. 

Chapter  I.     The  Contract  of  Marriage,  §§55-80. 
II.     Divorce,  §§  82-148. 
III.     Husband  and  Wife,  §§  155-181. 

CHAPTER    I. 

THE    CONTRACT    OF    MARRIAGE. 

Article  I.     Validity  of  Marriage,  §§  55-63. 

II.     Authentication  of  Marriage,   §§  68-79%. 
Ill,     Judicial  Determination  of  Void  Marriage,  §  80. 


ARTICLE    I. 
VALIDITY    OF    MARRIAGE. 

55.  What  constitutes  marriage. 

56.  Minors  capable  of  contracting  marriage. 

57.  Marriage,  how  manifested  and  proved. 

58.  Certain  marriages  voidable.' 

59.  Incompetency  of  parties  to. 

60.  Of  whites  and  negroes  or  mulattoes,  void. 

61.  Marriage    illegal    unless    divorced    one    year ; 

years. 

62.  Released  from  marriage  contract,  when. 

63.  Marriage  contracted  without  the  state. 


or    absent    five 


§  55.  What  constitutes  marriage.  Marriage  is  a  per- 
sonal relation  arising  out  of  a  civil  contract,  to  which  the 
consent  of  parties  capable«of  making  that  coiltract  is  neces- 


81 


CONTRACT     OF     MARRIAGE. 


§§  5G-59 


sary.  Consent  alone  will  not  constitute  marriage;  it  must 
be  followed  by  a  solemnization  authorized  by  this  code. 
En.  March  21,  1872.     Am'd.  1895,  121. 


Cal.Rep.Cit 

67, 

212; 

75, 

8 

75, 

9; 

75, 

12 

75, 

13 

75,  14 

75, 

15; 

75, 

16 

75, 

17; 

75, 

18 

75, 

19 

75,  21 

75, 

22; 

75. 

23 

75, 

24; 

75, 

35 

75. 

50 

75,  51 

75, 

57; 

75, 

59 

75, 

72; 

75, 

76 

79. 

644 

79,  651 

79, 

667; 

79, 

669 

79, 

684; 

81, 

189 

82, 

416 

.  82,  417 

89, 

49; 

89, 

50 

S9, 

288; 

104, 

261 

104, 

633 

104,  634 

105, 

360; 

121, 

628 

121, 

629; 

128, 

310 

133, 

527 

137,  146. 

§56.  Minors  capable  of  contracting  marriage.  Any  un- 
married male  of  the  age  of  eighteen  years  or  upwards,  and 
any  unmarried  female  of  the  age  of  fifteen  years  or  up- 
wards, and  not  otherwise  disqualified,  are  capable  of  con- 
senting to  and  consummating  marriage.  En.  March  21, 
1872. 

Cal.Rep.Cit.  75,  14;   75,  16;   79,  667;   123,  226. 

§57.  Marriage,  how  manifested  and  proved.  Consent 
to  marriage  and  solemnization  thereof  may  be  proved 
under  the  same  general  rules  of  evidence  as  facts  are 
proved  in  other  cases.  En.  March  21,  1872.  Am'd.  1895, 
121. 


Cal.Rep.Cit. 
75,     76 ; 


75,     15; 
79,  667; 


75.     16; 
79,  686; 


75,     51;      75,     52;     75,     63; 
79,  694;   116,  313;   133,  527. 


§  58.  Certain  marriages  voidable.  If  either  party  to  a 
marriage  be  incapable  from  physical  causes  of  entering 
into  the  marriage  state;  or  if  the  consent  of  either  be 
obtained  by  fraud  or  force,  the  marriage  is  voidable.  En. 
March  21,  1872.    Am'd.  1873-4,  185. 

Cal.Rep.Cit.   138,   549. 

Penalty  for  false  personation  in  marital  relations:  Pen. 
Code,  sec.  528. 

See   also,  post,  sec.  82,  subd.  4. 

§  59.  Incompetency  of  parties  to.  Marriages  between 
parents  and  children,  ancestors  and  descendants  of  every 
degree,  and  between  brothers  and  sisters  of  the  half  as 
well  as  the  whole  blood,  and  between  uncles  and  nieces  or 
aunts  and  nephews,  are  incestuous,  and  void  from  the 
beginning,  whether  the  relationship  is  legitimate  or  ille- 
gitimate.    En.  March  21,  1872. 


S§  60-63  CONTRACT     OF     MARRIAGE.  32 

Penalty  for  incestuous  marriages:  Pen.  Code,  sees.  285, 
359. 

§  60.  Of  whites  and  negroes  or  mulattoes,  void.  All 
marriages  of  white  persons  with  negroes  or  mulattoes  are 
illegal  and  void.     En.  March  21,  1872. 

Cal.Kep.Cit.   137,   135. 

§  61.  iVlarriage  illegal  unless  divorced  one  year;  op 
absent  five  years.  A  subsequent  marriage  contracted  by 
any  person  during  the  life  of  a  former  husband  or  wife  of 
such  person,  with  any  person  other  than  such  former  hus- 
band or  wife,  is  illegal  and  void  from  the  beginning,  unless: 

1.  The  former  marriage  has  been  annulled  or  dissolved. 
In  no  case  can  a  marriage  of  either  of  the  parties  during 
the  life  of  the  other,  be  valid  in  this  state,  if  contracted 
within  one  year  after  the  entry  of  an  interlocutory  decree 
in  a  proceeding  for  divorce. 

2.  Unless  such  former  husband  or  wife  is  absent,  and  not 
known  to  such  person  to  be  living  for  the  space  of  five 
successive  years  immediately  preceding  such  subsequent 
marriage,  or  is  generally  reputed  or  believed  by  such 
person  to  be  dead  at  the  time  such  subsequent  marriage 
was  contracted.  In  either  of  which  cases  the  subsequent 
marriage  is  valid  until  its  nullity  is  adjudged  by  a  com- 
petent tribunal.  En.  March  21,  1872.  Am'd.  1873-4,  185; 
1897,  34;   1903,  176. 

Cal.Rep.Cit.  94,  459;  133,  527;  137,  131;  137,  132;  137,  135; 
137,  137;  137,  138;  137,  139;  137,  142;  137.  144.  Subd.  1— 
137,  133;   137,  134.       Subd.   2  —  94,  464. 

Penalty  for  bigamy:  Pen.  Code,  sees.  283-84;  exceptions, 
idem,  sec.  282. 

§  62.  Released  from  marriage  contract,  when.  Neither 
party  to  a  contract  to  marry  is  bound  by  a  promise  made 
in  ignorance  of  the  other's  want  of  personal  chastity,  and 
either  is  released  therefrom  by  unchaste  conduct  on  the 
part  of  the  other,  unless  both  parties  participate  therein. 
En.  March  21,  1872.    Am'd.  1873-4,  185. 

§  63.  Marriage  contracted  without  the  state.  All  mar- 
riages contracted  without  this  state,  which  would  be  valid 


33  CONTRACT    OF    MARRIAGE.  §§  68,  69 

by  the  laws  of  the  country  in  which  the  same  were  con- 
tracted, are  valid  in  this  state.     En.  March  21,  1872. 

Cal.Rep.Cit.  121,  624;   137,  135;   137,  136;  137,  137;   137,  138; 
137,  139;  137.  145;   137.  147. 


ARTICLE    II. 

AUTHENTICATION    OF    MARRIAGE. 

§  es.  Procedure  required. 

I  69.  Marriage  license. 

§  70.  By  whom  solemnized. 

§  71.  No  particular  form  of  solemnization. 

§  72.  Requirements  by  persons  solemnizing  marriage. 

§  73.  Certificate  of  marriage. 

§  74.  Certificate  to  parties  and  recorder. 

§  75.  Declaration  where  there  is  no  record.      (Repealed.) 

§  76.  Declaration  to  contain  what. 

§  77.  To  be  acknowledged  and  recorded. 

§  78.  Either  party  may  proceed  to  determine  validity. 

§  79.  Persons  who  may  be  married  without  license. 

§  79%.  Members  of  particular  religious  denomination. 

§  68.  Procedure  required.  Marriage  must  be  licensed, 
solemnized,  authenticated  and  recorded  as  provided  in  this 
article;  but  noncompliance  with  its  provisions  by  other 
than  the  parties  to  a  marriage  does  not  invalidate  that 
marriage.     En.  March  21,  1872.     Am'd.  1895,  121. 

Cal.Rep.Cit.   104.  261;    116,  311;    121,  628;   133,  527. 

§  69.  Marriage  license.  All  persons  about  to  be  joined 
in  marriage  must  first  obtain  a  license  therefor  from  the 
county  clerk  of  the  county  in  which  the  marriage  is  to  be 
celebrated,  showing: 

1.  The  identity  of  the  parties. 

2.  Their  real  and  full  names  and  places  of  residence. 

3.  Their  ages. 

4.  If  the  male  be  under  the  age  of  twenty-one,  or  the 
female  under  the  age  of  eighteen  years,  the  consent  of  the 
father,  mother,  or  guardian,  or  of  one  having  the  charge 
of  such  person,  if  any  such  be  given;  or  that  such  nonaged 
person  has  been  previously,  but  is  not  at  the  time,  married. 

For  the  purpose  of  ascertaining  these  facts,  the  clerk 
is  authorized  to  examine  parties  and  witnesses  on  oath,  and 
to  receive  affidavits,  and  he  must  state  such  facts  in  the 
license.    If  the  male  be  under  the  age  of  twenty-one  years, 


§§  70-73  CONTRACT    OF     MARRIAGE.  3-J 

or  the  female  be  under  the  age  of  eighteen,  and  such  persou 
has  not  been  previously  married,  no  license  shall  oe  issued 
by  the  clerk,  unless  the  consent  in  writing  of  the  parents 
of  the  person  under  age,  or  of  one  of  such  parents,  or  of 
his  or  her  guardian,  or  of  one  having  charge  of  such  person, 
be  presented  to  him;  and  such  consent  shall  be  filed  by  the 
clerk;  provided  that  the  said  clerk  shall  jiot  issue  a 
license  authorizing  the  marriage  of  a  white  person  with  a 
negro,  mulatto  or  Mongolian.  En.  March  21,  1872.  Am'd. 
1873-4,  185;  1880,  3. 

Cal.Rep.Cit.   59,  374;   116,  311;   121,  629;   123,  226. 

§  70.  By  "whom  solemnized.  Marriage  may  be  solem- 
nized by  either  a  justice  of  the  supreme  court,  judge  of  the 
superior  court,  justice  of  the  peace,  judge  of  any  pqlice 
court,  city  recorder,  priest  or  minister  of  the  gospel  of  any 
denomination.  En.  March  21,  1872.  Am'd.  1880,  4;  1903, 
255. 

Cal.Rep.Cit.   75,  12;   116,  311;   121,  628;   121,  629. 

Form  of  marriage  ceremony:  See  Const.  Cal.  1879,  art. 
XX,  sec.  7;  see,  also,  art.  XI,  sec.  12,  former  constitution. 

Penalty  for  solemnization  of  illegal  marriage:  Pen.  Code, 
sec.  359. 

§  71.  No  particular  form  of  solemnization.  No  particu- 
lar form  for  the  ceremony  of  marriage  is  required,  but  the 
parties  must  declare,  in  the  presence  of  the  person  solem- 
nizing the  marriage,  that  they  take  each  other  as  husband 
and  wife.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  12;   121,  628;   133,  527. 

§  72.     Requirements    by    persons    solemnizing    marriage. 

The  person  solemnizing  a  marriage  must  first  require  the 
presentation  of  the  marriage  license;  and  if  he  has  any 
reason  to  doubt  the  correctness  of  its  statement  of  facts, 
he  must  first  satisfy  himself  of  its  correctness,  and  for 
that  purpose  he  may  administer  oaths  and  examine  the 
parties  and  witnesses  in  like  manner  as  the  county  clerk 
does  before  issuing  the  license.  En.  March  21,  1872.  Am'd. 
1873-4,  186. 

§  73.  Certificate  of  marriage.  The  person  solemnizing 
a  marriage  must  make,  sign  and  indorse  upon,  or  attach  to, 
the  license,  a  certificate  showing: 


86  CONTRACT     OF     MARRIAGE.  §§  74-78 

1,.  The  fact,  time  and  place  of  solemnization;  and 

2.  The  names  and  places  of  residence  of  one  or  mort 

witnesses  to  the  ceremony.     En.  March  21,  1872.     Am'd 

1873-4,  187. 

Penalty  for  false  return:  Pen.  Code,  sec.  360. 

§  74.  Certificate  to  parties  and  recorder.  He  must,  at 
the  request  of,  and  for  either  party  make  a  certified  copy 
of  the  license  and  certificate,  and  file  the  originals  with 
the  county  recorder  within  thirty  days  after  the  marriage. 
En.  March  21,  1872. 

Recorder  must  record:   Pol.  Code,  sec.  4235. 

§75.     Declaration  where  there  is  no  record.     (Repealed.) 

En.  March  21,  1872.     Rep.  1895,  121. 

Cal.Rep.Cit.     75,     60;     75,     66;     75,     77;     79,  651;   104,  261; 
116,  311;   121,  628. 

§  76.  Declaration  to  contain  what.  If  no  record  of  the 
solemnization  of  a  marriage  heretofore  contracted  be 
known  to  exist,  the  parties  may  join  in  a  written  declara- 
tion of  such  marriage,  substantially  showing: 

1.  The  names,  ages,  and  residences  of  the  parties. 

2.  The  fact  of  marriage. 

3.  That  no  record  of  such  marriage  is  known  to  exist. 
Such  declaration  must  be  subscribed  by  the  parties  and 
attested  by  at  least  three  witnesses.  En.  March  21,  1872. 
Am'd.  1873-4,  187. 

Cal.Rep.Cit.   116,  310;   116,  311;   116,  312;   121,  629. 

§  77.  To  be  acknowledged  and  recorded.  Declarations 
of  marriage  must  be  acknowledged  and  recorded  in  like 
manner  as  grants  of  real  property.    En.  March  21,  1872. 

Cal.Rep.Cit.   75,  77;   116,  311;   121,  629. 

Recording:    See  Pol.  Code,  sec.  4235. 

§  78.     Either   party   may   proceed   to   determine   validity. 

If  either  party  to  any  marriage  denies  the  same,  or  refuses 
to  join  in  a  declaration  thereof,  the  other  may  proceed,  by 
action  in  the  superior  court,  to  have  the  validity  of  the 
marriage  determined  and  declared.  En.  March  21,  1872. 
Am'd.  1883,  3. 

Cal.Rep.Cit.   67,  194;    C7,  195;   75,  12;   121,  623. 


S§  79,  79>A  CONTRACT    OP    MARRIAGE.  86 

§79.  Persons  who  may  be  married  without  license. 
When  unmarried  persons,  not  minors,  have  been  living 
together  as  man  and  wife,  they  may,  without  a  license,  be 
married  by  any  clergyman.  A  certificate  of  such  marriage 
must,  by  the  clergyman,  be  made  and  delivered  to  the 
parties,  and  recorded  upon  the  records  of  the  church  of 
which  the  clergyman  is  a  representative.  No  other  record 
need  be  made.     En.  Stats.  1877-8,  75. 

Cal.Rep.Cit.  104,  261. 

§791/^.     IVIembers    of    particular    religious    denomination. 

The  provisions  of  this  chapter,  so  far  as  they  relate  to 
procuring  licenses  and  the  solemnizing  of  marriages,  are 
not  applicable  to  members  of  any  particular  religious 
denomination  having,  as  such,  any  peculiar  mode  of  enter- 
ing the  marriage  relation;  but  such  marriages  shall  be 
declared,  as  provided  in  section  seventy-six  of  the  Civil 
Code  of  this  state,  and  shall  be  acknowledged  and  re- 
corded, as  provided  in  section  seventy-seven  of  said  Civil 
Code.  Where  a  marriage  is  declared  as  is  provided  in  said 
section  seventy-six,  the  husband  shall  file  said  declaration 
with  the  county  recorder  within  thirty  days  after  said 
marriage,  and  upon  receiving  the  same  the  county  recorder 
shall  record  the  same;  and  if  the  husband  fail  to  make 
such  declaration  and  file  the  same  for  record,  as  herein 
provided,  he  shall  be  liable  to  the  same  penalties  as  any 
person  authorized  to  solemnize  marriages,  and  who  fails 
to  make  the  return  of  such  solemnization  as  provided  by 
law.  En.  Stats.  1897,  186. 
Cal.Rep.Cit.  121,  629. 


37  DIVORCE.  S§  80,  82 


ARTICLE    TIL 

JUDICIAL.    DETERMINATION    OF    VOID    MARRIAGES. 

§  80.    Action  to  have  marriage  declared  void. 

§  80.  Action  to  have  marriage  declared  void.  Either 
party  to  an  incestuous  or  void  marriage  may  proceed  by 
action  in  the  superior  court,  to  have  the  same  so  declared- 
En.  Stats.  1875-6,  69.     Am'd.  1880,  4. 

CHAPTER    XL 
DIVORCE. 

Article  I.  Nullity,  §§  82-86. 

II.  Dissolution,  §§  90-107. 

III.  Causes  for  Denying  Divorce,  §§  111-132. 

IV.  General  Provisions,  §§  136-148. 

ARTICLE    L 

NULLITY. 

5  82.  Causes  for  annulling  marriages. 

§  83.  Actions  therefor,  when  to  be  commenced. 

§  84.  Children  of  annulled  marriage. 

§  85.  Custody  of  children. 

I  86.  Effect  of  judgment  of  nullity. 

.§82.  Causes  for  annulling  marriages.  A  marriage  may 
be  annulled  for  any  of  the  following  causes,  existing  at 
the  time  of  the  marriage: 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have 
the  marriage  annulled  was  under  the  age  of  legal  consent, 
and  such  marriage  was  contracted  without  the  consent  of 
his  or  her  parents  or  guardian,  or  person  having  charge 
of  him  or  her;  unless,  after  attaining  the  age  of  consent, 
such  party  for  any  time  freely  cohabited  with  the  other 
as  husband  or  wife. 

2.  That  the  former  husband  or  wife  of  either  party  was 
living,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force. 

3.  That  either  party  was  of  unsound  mind,  unless  such 
party,  after  coming  to  reason,  freely  cohabit  with  the  other 
as  -husband  and  wife. 


§  83  DIVORCE.  38 

4.  That  the  consent  of  either  party  was  obtained  by 
fraud,  unless  such  party  afterward,  with  full  knowledge  of 
the  facts  constituting  the  fraud,  freely  cohabited  with  the 
other  as  husband  or  wife. 

5.  That  the  consent  of  either  party  was  obtained  by  force, 
unless  such  party  afterwards  freely  cohabited  with  the 
other  as  husband  or  wife. 

6.  That    either    party    was,    at    the    time    of    marriage, 

physically  incapable  of  entering  into  the  marriage  state, 

and  such  incapacity  continues,  and  appears  to  be  incurable. 

En.  March  21,  1872.     Am'd.  1873-4,  187. 

Cal.Rep.Cit.      88,565;      99,287.       Subd.   2  —  94,  464.     Subd.   5— 
137,     27. 

Subd.  4.  Consent  obtained  by  fraud:  See  ante,  sec.  58. 
Subd.  5.  Consent  obtained  by  force:  See  ante,  sec.  58. 
Subd.  6.     Physical  incapacity:    See   aiite,  sec.  58. 

§  83.  Actions  therefor,  when  to  be  commenced.  An 
action  to  obtain  a  decree  of  nullity  of  marriage  for  causes 
mentioned  in  the  preceding  section,  must  be  commenced 
within  the  periods  and  by  the  parties  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by  the  party 
to  the  marriage  who  was  married  under  the  age  of  legal 
consent,  within  four  years  after  arriving  at  the  age  of 
consent;  or  by  a  parent,  guardian,  or  other  person  having 
charge  of  such  nonaged  male  or  female,  at  any  time  before 
such  married  minor  has  arrived  at  the  age  of  legal  consent. 

2.  For  causes  mentioned  in  subdivision  two:  by  either 
party  during  the  life  of  the  other,  or  by  such  former  hus- 
band or  wife. 

3.  For  causes  mentioned  in  subdivision  three:  by  the 
party  injured,  or  relative  or  guardian  of  the  party  of  un- 
sound mind,  at  any  time  before  the  death  of  either  party. 

4.  For  causes  mentioned  in  subdivision  four:  by  the 
party  injured,  within  four  years  after  the  discovery  of  the 
facts  constituting  the  fraud. 

5.  For  causes  mentioned  in  subdivision  five:  by  the 
injured  party,  within  four  years  after  the  marriage. 

6.  For  causes  mentioned  in  subdivision  six:  by  the  in- 
jured party,  within  four  years  after  the  marriage.  En. 
March  21,  1872.    Am'd.  1873-4,  188. 


S9  DIVORCE.  §S  S4-S6 

§84.  Children  of  annulled  marriage.  Where  a  marriage 
is  annulled  on  the  ground  that  a  former  husband  or  wife 
v/as  living,  or  on  the  ground  of  insanity,  children  begotten 
before  the  judgment  are  legitimate,  and  succeed  to  the 
estate  of  both  parents,    En.  March  21,  1872. 

Cal.Rep.Cit.   57,   491. 

Legitimate  children,  who  are:  See  sees.  193-195.  See, 
"''^o,  when  the  question  arises  in  divorce  cases  for  adultery, 
sees.  144,  145. 

§  85.  Custody  of  children.  The  court  must  award  the 
custody  of  the  children  of  a  marriage  annulled  on  the 
ground  of  fraud  or  force  to  the  innocent  parent,  and  may 
also  provide  for  their  education  and  maintenance  out  of  the 
property  of  the  guilty  party.    En.  March  21,  1872. 

Custody  of  children  In  divorce  causes:  See  post,  sec. 
138. 

§86.  Effect  of  judgment  of  nullity.  A  judgment  of 
nullity  of  marriage  rendered  is  conclusive  only  as  against 
the  parties  to  the  action  and  those  claiming  under  them. 
En.  March  21,  1872. 

Effect  of  decree  for  divorce:    See   post,  sec.  91. 


ARTICLE    IL 
DISSOLUTION    OF    MARRIAGE. 

§    90.  Marriage,  how  dissolved. 

§    91.  Effect  of  divorce. 

§    92.  Causes  for  divorce. 

§    93.  Adultery  defined. 

§    94.  Extreme  cruelty,  what. 

§    95.  Desertion,  what. 

§    96.  Desertion,  how  manifested. 

§    97.  In  case  of  stratagem  or  fraud,  who  commits  desertion. 

§    98.  In   case   of   cruelty,   where  one  party   leaves  the  other,   who 

commits  desertion. 

§    99.  Separation  by  consent  not  desertion. 

§100.  Absence  becomes  desertion,  when. 

§  101.  Consent  to  separate  revocable. 

§  102.  Desertion,  how  cured.     Effect  of  refusing  condonation. 

§  103.  Wife   must   abide   by   husband's    selection    of   home   or    it    Is 

desertion  on  her  part. 

§  104.  If    the    place    is    unfit,    and    wife    refuses    to    conform,    it    is 

desertion  by  the  husband. 

§  105.  Willful  neglect,  what. 

§  106.  Habitual  intemperance,  what. 

§  107.  Habitual  intemperance,  etc.,  for  one  year. 


§§  90-04  DIVORCE.  40 

§  90.  Marriage,  how  dissolved.  Marriage  Is  dissolved 
only: 

1.  By  the  death  of  one  of  the  parties;  or, 

2.  By  the  judgment  of  a  court  of  competent  jurisdiction 

decreeing  a  divorce  of  the  parties.     En.   March  21,  1872. 

Am'd.  1873-4,  189. 

Cal.Rep.Cit.  137,     27;   137,  134;   137,  137;   137,  138;   137,  139; 
137,  144. 

§91.  Effect  of  divorce.  The  effect  of  a  judgment  decree- 
ing a  divorce  is  to  restore  the  parties  to  the  state  of  un- 
married persons.    En.  March  21,  1872.    Am'd.  1873-4,  189. 

Cal.Rep.Cit.  137.  133;   137.  134;   137.  137;   137.  138;   137,  139; 
137.  144. 

§  92.  Causes  for  divorce.  Divorces  may  be  granted  for 
any  of  the  following  causes: 

1.  Adultery. 

2.  Extreme  cruelty. 

3.  Willful  desertion. 

4.  Willful  neglect. 

5.  Habitual  intemperance. 

6.  Conviction   of   felony.     En.    March    21,    1872.     Am'd. 

1873-4,  189. 

Cal.Rep.Cit.     51,544;      74,492;      85,  256 ;   126,  128.    Subd.  3— 
135,  397. 

Alimony:    See    post,  sees.  136  et  seq. 
Community  property,  and  its  disposition  under  proceed- 
ings for  divorce:   See   post,  sees.  141  et  seq. 

§  93.  Adultery  defined.  Adultery  is  the  voluntary  sexual 
intercourse  of  a  married  person  with  a  person  other  than 
the  offender's  husband  or  wife.     En.  March  21,  1872. 

Cal.Rep.Cit.   51,   544. 

Open  and  notorious  adultery  is  punished  by  act  of  May 
15,  1872.     See  Stats.  1871-2,  p.  380. 

§  94.     Extreme   cruelty,   what.     Extreme   cruelty   Is   the 

infliction   of    grievous    bodily    injury    or    grievous    mental 

suffering  upon  the  other  by  one  party  to  the  marriage.    En. 

March  21,  1872. 

Cal.Rep.Cit.      51,544;      85,256;      85,267;      85,269;      86,224; 
95,  176:   124,  652. 


41  DIVORCE.  §§9C-1„0 

§  95.  Desertion,  what.  Wiliiul  desertion  is  the  volun- 
tary separation  of  one  of  the  married  parties  from  the 
other  with  intent  to  desert.    En.  March  21,  1872. 

Cal.Rep.Cit.      51,  544;      65,  632;    122.  255;   122,  256;   130,  577; 
134,     89. 

§  96.  Desertion,  how  manifested.  Persistent  refusal  to 
have  reasonable  matrimonial  intercourse  as  husband  and 
wife,  when  health  or  physical  condition  does  not  make  such 
refusal  reasonably  necessary,  or  the  refusal  of  either  party 
to  dwell  in  the  same  house  with  the  other  party,  when 
there  is  no  Just  cause  for  such  refusal,  is  desertion.  En. 
March  21,  1872. 

Cal.Rep.Cit.   51,  544;   136,  196;   137,  560. 

§  97.  In  case  of  stratagem  or  fraud,  who  commits  deser- 
tion. When  one  party  is  induced,  by  the  stratagem  or 
fraud  of  the  other  party,  to  leave  the  family  dwelling- 
place,  or  to  be  absent,  and  during  such  absence  the  offend- 
ing party  departs  with  intent  to  desert  the  other,  it  is 
desertion  by  the  party  committing  the  stratagem  or  fraud, 
and  not  by  the  other.    En.  March  21,  1872. 

Cal.Rep.Cit.   51,  544;   74,  613. 

§  98.     In    case    of   cruelty,   where    one    party    leaves   the 

other,  who  commits   desertion.     Departure  or   absence   of 

one  party  from  the  family  dwelling-place,  caused  by  cruelty 

or  by  threats  of  bodily  harm,  from  which  danger  would  be 

reasonably  apprehended  from  the  other,  is  not  desertion 

by  the  absent  party,  but  it  is  desertion  by  the  other  party. 

En.  March  21,  1872. 

Cal.Rep.Cit.      51,  544;      74,  613;      86,  224;   122,  397;   122,  398; 
'   134,  207. 

§  99.  Separation  by  consent  not  desertion.  Separation 
by  consent  with  or  without  the  understanding  that  one  of 
the  parties  will  apply  for  a  divorce,  is  not  desertion.  En. 
March  21,  1872. 

Cal.Rep.Cit.   74,  613;   106,  544. 

Consent  revocable:    See  infra,  sec.  101. 

§  100.  Absence  becomes  desertion,  when.  Absence  or 
separation,  proper  in  itself,  becomes  desertion  whenever 
the  intent  to  desert  is  fixed  during  such  absence  or  separa- 
tion.   En.  March  21,  1872.    Am'd.  1873-4,  189. 

Cal.Rep.Cit.   106,  544.  ' 


§§101-105  DIVORCE.  42 

§  101.  Consent  to  separate  revocable.  Consent  to  a 
separation  is  a  revocable  act,  and  if  one  of  tiie  parties 
afterward,  in  good  faith,  seelis  a  reconciliation  and  restora- 
tion, but  the  other  refuses  it,  such  refusal  is  desertion. 
En.  March  21,  1872. 

Cal.Rep.Cit.  105,  543;   106,  544;   134,  347. 

§  102.  Desertion,  how  cured.  Effect  of  refusing  con- 
donation. If  one  pai-ty  deserts  the  other,  and  before  the 
expiration  of  the  statutory  period  required  to  make  the 
desertion  a  cause  of  divorce,  returns  and  offers  in  good 
faith  to  fulfill  the  marriage  contract,  and  solicits  con- 
donation, the  desertion  is  cured.  If  the  other  party  refuse 
such  offer  and  condonation,  the  refusal  shall  be  deemed  and 
treated  as  desertion  by  such  party  from  tlie  time  of  refusal. 
En.  March  21,  1872.    Am'd.  1873-4,  190. 

Cal.Rep.Cit.   65,  632  ;   123,  654  ;   123,  656  ;   126,  128. 

§  103.  Wife  must  abide  by  Inusband's  selection  of  home 
or  it  is  desertion  on  her  part.  The  husband  may  chose 
any  reasonable  place  or  mode  of  living,  and  if  the  wife  does 
not  conform  thereto,  it  is  desertion.     En.  March  21,  1872. 

Cal.Rep.Cit.   136,   203. 

Same  principle:    Post,  sec.  156. 

Separate  domicile  for  purposes  of  divorce  proceeding: 
See  infra,  sec.  129. 

§  104.  If  the  place  is  unfit,  and  wife  refuses  to  conform, 
it  is  desertion  by  the  husband.  If  the  place  or  mode  of 
living  selected  by  the  husband  is  unreasonable  and  grossly 
unfit,  and  the  wife  does  not  conform  thereto,  it  is  desertion 
on  the  part  of  the  husband  from  the  time  her  reasonable 
objections  are  made  known  to  him.     En.  March  21,  1872. 

Cal.Rep.Cit.   74,   613. 

§  105.  Willful  neglect,  what.  Willful  neglect  is  the 
neglect  of  the  husband  to  provide  for  his  wife  the  common 
necessaries  of  life,  he  having  the  ability  to  do  so;  or  it 
is  the  failure  to  do  so  by  reason  of  idleness,  profligacy,  or 
dissipation.     En.  March  21,  1872. 

Cal.Rep.Cit.   51,  544;   104,  296;   130.  577. 

Duration  of  neglect:    See    infra,  sec.  169. 


43  DIVORCE.  §§  106-111 

§  106.  Habitual  intemperance,  what.  Habitual  intem- 
perance is  that  degree  of  intemperance  from  the  use  of 
intoxicating  drinks  which  disqualifies  the  person  a  great 
portion  of  the  time  from  properly  attending  to  business, 
or  which  would  reasonably  inflict  a  course  of  great  mental 
anguish  upon  the  innocent  party.     En.  March  21,  1872. 

Cal.Rep.Cit.   62,  178;   80,  529;   96,  7;   130,  577. 

Duration  of  intemperance:   See  next  section. 

§  107.  Habitual  intemperance,  etc.,  for  one  year.  Willful 
desertion,  v/illful  neglect,  or  habitual  intemperance  must 
continue  for  one  year  before  either  is  a  ground  for  divorce. 
En.  March  21,  1872. 

Cai.Rep.Cit.  74,  613;   122,  255;  123,  654;   135,  397. 

ARTICLE    III. 

CAUSES    FOR    DENYING    DIVORCE, 

§  111.  Divorces  denied,  on  showing  wliat. 

§  112.  Connivance,  what. 

§  113.  Corrupt  consent,  how  manifested. 

§  114.  Collusion,  what. 

§  115.  Condonation,  what. 

§  116.  Requisites  to  condonation. 

§  117.  Condonation  implies  what. 

§  118.  Evidence  of  condonation 

§  119.  Condonation  can  only  be  made  when. 

§  120.  Concealment    of    facts    in    certain    cases    makes    condonation 

void. 

§  121.  Condonation,  how  revoked. 

§  122.  Recrimination,  what. 

§  123.  Condonation,  when  to  bar  defense. 

§  124.  Divorces  denied,  when. 

§  125.  Lapse  of  time  establishes  certain  presumptions. 

§  126.  Presumptions  may  be  rebutted. 

§  127.  Limitation  of  time. 

§  128.  Residence  of  plaintiff. 

§  129.  Proof    of    actual    residence    required.      Presumptions    do   not 

apply. 

§  130.  Divorce  not  to  be  granted  by  default,  etc. 

§  iSl.  Interlocutory  judgment. 

§  132.  Pinal  judgment  after  one  year. 

§111.     Divorces    denied,    on    showing    what.      Divorces 

must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  Recrimination;  or, 

'     5.  Limitation  and  lapse  of  time.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,   613. 


5§  112-118  DIVORCE.  44 

§112.  Connivance,  what.  Connivance  is  the  corrupt 
consent  of  one  party  to  the  commission  of  the  acts  of  the 
other,  constituting  the  cause  of  divorce.  En.  March  21, 
1872. 

Cal.Rep.Clt.  121,  12. 

§  113.  Corrupt  consent,  how  manifested.  Corrupt  con- 
sent is  manifested  by  passive  permission,  with  intent  to 
connive  at  or  actively  procure  the  commission  of  the  acts 
complained  of.    En.  March  21,  1872. 

§114.  Collusion,  what.  Collusion  is  an  agreement  be- 
tween husband  and  wife  that  one  of  them  shall  commit, 
or  appear  to  have  committed,  or  to  be  represented  in 
court  as  having  committed,  acts  constituting  a  cause  of 
divorce,  for  the  purpose  of  enabling  the  other  to  obtain  a 
divorce.     En.  March  21,  1872. 

Cal.Rep.Cit.  65,  355 ;   121,  12. 

§115.  Condonation,  what.  Condonation  is  the  con- 
ditional forgiveness  of  a  matrimonial  offense  constituting 
a  cause  of  divorce.    En.  March  21,  1872. 

Cal.Rep.Cit.   102,  438;   123,  656. 

Revoking  condonation:    Sec.  121,  infra. 

Condonation  of  recriminatory  defense:  Post,  sec.  123. 

§  116.  Requisites  to  condonation.  The  following  re- 
quirements are  necessary  to  condonation: 

1.  A  knowledge  on  the  part  of  the  condoner  of  the  facts 
constituting  the  cause  of  divorce; 

2.  Reconciliation  and  remission  of  the  offense  by  the 
injured  party; 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 
En.  March  21,  1872.  * 

Cal.Rep.Cit.   95,  446;   102,  438. 

§  117.  Condonation  implies  what.  Condonation  implies 
a  condition  subsequent;  that  the  forgiving  party  must 
be  treated  with  conjugal  kindness.    En.  March  21,  1872. 

Cal.Rep.Cit.   117,  446  ;   120,  189. 

§  118.  Evidence  of  condonation.  Where  the  cause  of 
divorce  consists  of  a  course  of  offensive  conduct,  or  arises, ' 
in  cases  of  cruelty,  from  excessive  acts  of  ill-treatment, 


45  DIVORCE.  §§  119-123 

which  may,  aggregately,  constitute  the  offense,  cohabita- 
tion, or  passive  endurance,  or  conjugal  kindness  shall 
not  be  evidence  of  condonation  of  any  of  the  acts  con- 
stituting such  cause  unless  accompanied  by  an  express 
agreement  to  condone.  En.  March  21,  1872.  Am'd.  1873-4, 
190. 

Cal.Rep.Cit.   117,  447;   119,  188;   119,  192;   132,  476. 

§  119.  Condonation  can  only  be  made  when.  In  cases 
mentioned  in  the  last  section,  condonation  can  be  made 
only  after  the  cause  of  divorce  has  become  complete,  as  to 
the  acts  complained  of.  En.  March  21,"  1872.  Am'd.  1873-4, 
190. 

§  120.  Concealment  of  facts  in  certain  cases  makes  con- 
donation void.  A  fraudulent  concealment  by  the  condonee 
of  facts  constituting  a  different  cause  of  divorce  from  the 
one  condoned,  and  existing  at  the  time  of  condonation, 
avoids  such  condonation.     En.  March  21,  1872. 

§  121.  Condonation,  liow  revoked.  Condonation  is  re- 
voked and  the  original  cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constituting  a  like 
or  other  cause  of  divorce;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  un- 
kindness,  not  amounting  to  a  cause  of  divorce,  but  suf- 
ficiently habitual  and  gross  to  show  that  the  conditions 
of  condonation  had  not  been  accepted  in  good  faith,  or  not 
fulfilled.    En.  March  21,  1872. 

Cal.Rep.Cit.   120,  189;   121,  12. 

§  122.  Recrimination,  what.  Recrimination  is  a  showing 
by  the  defendant  of  any  cause  of  divorce  against  the  plain- 
tiff, in  bar  of  the  plaintiff's  cause  of  divorce.  En.  March 
21,  1872. 

Cal.Rep.Cit.   63,  353;   74,  492;    119,  189. 

§  123.  Condonation,  when  to  bar  defense.  Condonation 
of  a  cause  of  divorce,  shown  in  the  answer  as  a  recrimina- 
tory defense,  is  a  bar  to  such  defense,  unless  the  con- 
donation be  revoked,  as  provided  in  section  one  hundred 
land  twenty-one,  or  two  years  have  elapsed  after  the  con- 
donation,  and   before   the   accruing  or   completion  of  the 


5§  124-129  DIVORCE.  48 

cause  of  divorce  against  which  the  recrimination  is  shown. 
En.  March  21,  1872.    Am'd.  1873-4,  190. 

§  124.  Divorces  denied,  when.  A  divorce  must  be 
denied: 

1.  When  the  cause  is  adultery,  and  the  action  is  not 
commenced  witliin  two  years  after  the  commission  of  the 
act  of  adultery,  or  after  its  discovery  by  the  injured  party; 
or, 

2.  When  the  cause  is  conviction  of  felony,  and  the  action 
is  not  commenced  before  the  expiration  of  two  years  after 
a  pardon,  or  the  termination  of  the  period  of  sentence. 

3.  In  all  other  cases  when  there  is  an  unreasonable 
lapse  of  time  before  the  commencement  of  the  action.  En. 
March  21,  1872.     Am'd.  1873-4,  191. 

Cal.Rep.Cit.   74,  613;   104,  296.     Subd.   3—121,  12. 

§  125.     Lapse  of  time   establishes  certain    presumptions. 

Unreasonable  lapse  of  time  is  such  a  delay  in  commencing 
the  action  as  establishes  the  presumption  that  there  has 
been  connivance,  collusion  or  condonation  of  the  offense, 
or  full  acquiescence  in  the  same,  with  intent  to  continue 
the  marriage  relation,  notwithstanding  the  commission  of 
such  offense.  En.  March  21,  1872. 
Cal.Rep.Cit.  121,  12. 

§  126.  Presumptions  may  be  rebutted.  The  presump- 
tions arising  from  lapse  of  time  may  be  rebutted  by  show- 
ing reasonable  •grounds  for  the  delay  in  commencing  the 
action.    En.  March  21,  1872. 

J  §  127.  Limitation  of  time.  There  are  no  limitations  of 
time  for  commencing  actions  for  divorce,  except  such  as 
are  contained  in  section  124.    En.  March  21,  1872. 

§  128.  Residence  of  plaintiff.  A  divorce  must  not  be 
granted  unless  the  plaintiff  has  been  a  resident  of  the  state 
for  one  year,  and  of  the  county  in  which  the  action  is 
brought  three  months  next  preceding  the  commencement 
of  the  action.    En.  March  21,  1872.    Am'd.  1891,  52. 

Cal.Rep.Cit.   74,  613;   100,  13;   100,  15;   100,  17;   128,  332. 

§  129.  Proof  of  actual  residence  required.  Presumptions 
do  not  apply.     In  actions  for  divorce  the  presumption  of 


47  DIVORCE.  §§  130-132 

law,  that  the  domicile  of  the  husband  is  the  domicile  of 
the  wife,  does  not  apply.  After  separation,  each  may  have 
a  separate  domicile,  depending  for  proof  upon  actual  resi- 
dence, and  not  upon  legal  presumptions.  En.  March  21, 
1872. 

Cal.Rep.Cit.  66,  310  ;   128,  274 ;   132,  92. 

§  130.  Divorce  not  to  be  granted  by  default,  etc.  No 
divorce  can  be  granted  upon  the  default  of  the  defendant, 
or  upon  the  uncorroborated  statement,  admission,  or  testi- 
mony of  the  parties,  or  upon  any  statement  or  finding  of 
fact  made  by  a  referee;  but  the  court  must,  in  addition 
to  any  statement  or  finding  of  the  referee,  require  proof 
of  the  facts  alleged,  and  such  proof,  if  not  taken  before 
the  court,  must  be  upon  written  questions  and  answers. 
En.  March  21,  1872.  Am'd.  1873-4,  191. 

Cal.Rep.Cit.      49,     94;      63,580;      65,355;      67,     24;      74,614; 
86,  221;      88,     48;      94,  227;   120,     37;   120,  186;   124,     58. 

§  131.  Interlocutory  judgment.  In  actions  for  divorce 
the  court  must  file  its  decision  and  conclusions  of  law  as  in 
other  cases,  and  if  it  determines  that  no  divorce  shall  be 
granted,  final  judgment  must  thereupon  be  entered  accord- 
ingly. If  it  determines  that  the  divorce  ought  to  be  granted 
an  interlocutory  judgment  must  be  entered,  declaring  that 
the  party  in  whose  favor  the  court  decides  is  entitled  to  a 
divorce,  and  from  such  interlocutory  judgment  an  appeal 
may  be  taken  within  six  months  after  its  entry,  in  the 
same  manner  and  with  like  effect  as  if  the  judgment  were 
final.    En.  Stats.  1903,  75. 

§  132.  Final  judgment  after  one  year.  When  one  year 
has  expired  after  the  entry  of  such  interlocutory  judg- 
ment, the  court  on  motion  of  either  party,  or  upon 
its  own  motion,  may  enter  the  final  judgment  grant- 
ing the  divorce,  and  such  final  judgment  shall  restore 
them  to  the  status  of  single  persons,  and  permit  either 
to  marry  after  the  entry  thereof;  and  such  other  and 
further  relief  as  may  be  necessary  to  complete  disposition 
of  the  action,  but  if  any  appeal  is  taken  from  the  inter- 
locutory judgment  or  motion  for  a  new  trial  made,  final 
judgment  shall  not  be  entered  until  such  motion  or  appeal 
has  been  finally  disposed  of,  nor  then,  if  the  motion  has 
been  granted  or  judgment  reversed.     The  death  of  either 


§§  136,  137  DIVORCE.  48 

party  after  the  entry  of  the  interlocutory  judgment  does 
not  impair  the  power  of  the  court  to  enter  final  judgment 
as  hereinbefore  provided;  but  such  entry  shall  not  validate 
any  marriage  contracted  by  either  party  before  the  entry 
of  such  final  judgment,  nor  constitute  any  defense  of  any 
criminal  prosecution  made  against  either.  En.  Stats. 
1903,  76. 


ARTICLE    IV. 

GENERAL    PROVISIONS. 

§  136.  Relief  may  be  adjudged  in  some  cases,  where  separation  is 
denied. 

§   137.     Expense  of  action,  alimony. 

1  138.     Orders  respecting  custody  of  children. 

§  139.  Support  of  wife  and  children  on  divorce  or  separation 
granted  to  wife. 

§   140.      Security   for  maintenance  and  alimony. 

§   141.      Court  shall  resort  to  what,  in  executing  certain  sections. 

§  142.  If  wife  has  sufficient  for  her  support,  court  may  withhold 
allowance. 

§  143.  Community  and  separate  property  may  be  subjected  to  sup- 
port and  educate  children. 

§  144.      Legitimacy  of  issue. 

§   145.      Same. 

§  146.     Disposition  of  community  property  on  divorce. 

§  147.      Same. 

§  148.      Such  an  action  subject  to  revision  on  appeal. 

§  136.     Relief    may    be    adjudged    in    some    cases,    where 

separation     is    denied.     Though    judgment    of    divorce    is 

denied,  the  court  may,  in  an  action  for  divorce,  provide  for 

the  maintenance  of  the  wife  and  her  children,  or  any  of 

them  by  the  husband.     En.  March  21,  1872. 

Cal.Rep.Cit.      68,589;      68,590;      74,611;      74,612;      74,614; 
79,  338;      79,  339;   124,     53;   124,     54;    124,     55;    126,  126; 
126,  127  ;    126,  129. 

Alimony  generally:    See  next  section. 

§  137.  Expense  of  action,  alimony.  When  an  action 
for  divorce  is  pending,  the  court  may,  in  its  discretion, 
require  the  husband  to  pay  as  alimony  any  money  neces- 
sary to  enable  the  wife  to  support  herself  or  her  children, 
or  to  prosecute  or  defend  the  action.  When  the  husband 
willfully  deserts  the  wife,  she  may,  without  applying  for 
a  divorce,  maintain  in  the  superior  court  an  action  against 
him  for  permanent  support  and  maintenance  of  herself  or 
of   herself   and   children.     During   the   pendency   of   such 


49 


DIVORCE. 


§§  138,  139 


action  the  court  may,  in  its  discretion,  require  the  husband 
to  pay  as  alimony  any  money  necessary  for  the  prosecution 
of  the  action  and  for  support  and  maintenance,  and  execu- 
tions may  issue  therefor  in  the  discretion  of  the  court. 
The  final  judgment  in  such  action  may  be  enforced  by 
the  court  by  such  order  or  orders  as  in  its  discretion  it 
may  from  time  to  time  deem  necessary,  and  cuch  order 
or  orders  may  be  varied,  altered  or  revoked  at  the  dis- 
cretion of  the  court.  En.  March  21,  1872.  Am'd.  1877-8,  76; 
1880,  4. 


Cal.Rep.Cit 

55,  320; 

67, 

177; 

67, 

201; 

67, 

203 

75, 

38 

79,  339 

80,  144; 

83, 

4G3; 

91, 

431; 

95, 

342 

97, 

126 

97,  127 

98,  321; 

99, 

621; 

100, 

494  ; 

104, 

47 

104, 

297 

109,  545 

109,  649,; 

113, 

271; 

115, 

273; 

115, 

275 

117, 

634 

122,  397 

123,  654; 

124, 

395; 

124, 

397; 

126, 

125 

126, 

126 

126,  127 

126,  128; 

126, 

129; 

135, 

125; 

136, 

304 

137. 

226. 

See  sec.  1 

39,  infra. 

§  138.     Orders    respecting    custody    of    children.     In    an 

action  for  divorce  the  court  may,  before  or  after  judgment, 

give  such  direction  for  the  custody,  care,  and  education  of 

the  children  of  the  marriage  as  may  seem  necessary  or 

proper,  and  may  at  any  time  vacate  or  modify  the  same. 

En.  March  21,  1872. 

Cal.Rep.Cit.  95,  377;  104,  48;  105,  261;  106,  380;  114,  545; 
118,  21;  120.  146;  120,  147;  125,  68;  125,  69;  125,  70; 
135,  193;    137,  495. 

Exclusive  control  of  child  without  divorce:  Sees.  199,  214. 
Awarding  custody  of   child,   considerations  that   should 
guide  the  court:  See,  post,  sec.  246. 

§  139.  Support  of  wife  and  children  on  divorce  or  sep- 
aration granted  to  wife.  Where  a  divorce  is  granted  for  an 
offense  of  the  husband,  the  court  may  compel  him  to  pro- 
vide for  the  maintenance  of  the  children  of  the  marriage, 
and  to  make  such  suitable  allowance  to  the  wife  for  her 
support,  during  her  life,  or  for  a  shorter  period,  as  the 
court  may  deem  just,  having  regard  to  the  circumstances 
of  the  parties  respectively;  and  the  court  may,'  trom  time 
to  time,  modify  its  orders  in  these  respects.  En.  March  21, 
1872. 


52,  384;      59,  418 

82,   112;      83.  463 

104,     47;  105,  261 


Cal.Rep.Cit. 

79,  603; 

102,  440; 

125.     68. 

Compare  with  sec.  148. 

Civ.   Code— 3 


75,     46;      79.  515;      79.  602; 

83,  465;      94.  255;      95.  377; 

114,  545;   114,  547;   124,  588; 


§§  140-145  DIVORCE.  50 

§  140.  Security  for  maintenance  and  alimony.  The 
court  may  require  the  husband  to  give  reasonable  security 
for  providing  maintenance  or  malting  any  payments  re- 
quired under  the  provisions  of  this  chapter,  and  may 
enforce  the  same  by  the  appointment  of  a  receiver,  or  by 
any  other  remedy  applicable  to  the  case.  En.  March  21, 
1872. 

Cal.Rep.Cit.     67,  202;   111,  495;   114,  546;   115,  274;   115,  275; 
116,     51;   123,  200;   124,     55;   124,  589;   126,  129. 

§  141.  Court  shall  resort  to  what,  in  executing  certain 
sections.  In  executing  the  five  preceding  sections  the  court 
must  resort: 

1.  To  the  community  property;  then, 

2.  To  the  separate  property  of  the  husband.  En.  March 
21,  1872. 

Cal.Rep.Cit.   67,  202;   83,  466;   114,  547;   115,  275. 

§  142.  If  wife  has  sufficient  for  her  support,  court  may 
withhold  allowance.  When  the  wife  has  either  a  separate 
estate,  or  there  is  community  property  sufficient  to  give 
her  alimony  or  a  proper  support,  the  court,  in  its  discretion, 
may  withhold  any  allowance  to  her  out  of  the  separate 
property  of  the  husband.  En.  March  21,  1872. 

§  143.  Community  and  separate  property  may  be  sub- 
jected to  support  and  educate  children.  The  community 
property  and  the  separate  property  may  be  subjected  to 
the  support  and  education  of  the  children  in  such  propor- 
tions as  the  court  deems  just.    En.  March  21,  1872. 

§  144.  Legitimacy  of  issue.  When  a  divorce  is  granted 
for  the  adultery  of  the  husband,  tlje  legitimacy  of  children 
of  the  marriage  begotten  of  the  wife  before  the  commence- 
ment of  the  action  is  not  affected.    En.  March  21,  1872. 

Legitimacy  of  children:  See  generally,  post,  sec.  193. 
See,  also,  the  next  section. 

§  145.  Same.  When  a  divorce  is  granted  for  the 
adultery  of  the  wife,  the  legitimacy  of  children  begotten 
of  her  before  the  commission  of  the  adultery  is  not 
affected;  but  the  legitimacy  of  other  children  of  the  wife 
may  be  determined  by  the  court,  upon  the  evidence  in 
the  case.     En.  March  21,  1872. 


61  DIVORCE.  §§  146-148 

§  146.  Disposition  of  community  property  on  divorce- 
In  case  of  the  dissolution  of  the  marriage  by  the  decree  of 
a  court  of  competent  jurisdiction,  the  community  property 
and  the  homestead  shall  be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery 
or  extreme  cruelty,  the  community  property  shall  be 
assigned  to  the  respective  parties  in  such  proportions  as 
the  court,  from  all  the  facts  of  the  case,  and  the  condition 
of  the  parties  may  deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than 
that  of  adultery  or  extreme  cruelty,  the  community  prop- 
erty shall  be  equally  divided  between  the  parties. 

3.  If  a  homestead  has  been  selected  from  the  com- 
munity property,  it  may  be  assigned  to  the  innocent  party, 
either  absolutely,  or  for  a  limiited  period,  subject,  in  the 
latter  case,  to  the  future  disposition  of  the  court,  or  it 
may,  in  the  discretion  of  the  court,  be  divided,  or  be  sold 
and  the  proceeds  divided, 

4.  If  a  homestead  has  been  selected  from  the  separate 

property  of  either,  it  shall  be  assigned  to  the  former  owner 

of  such  property,  subject  to  the  power  of  the  court  to  assign 

it  for  a  limited  period  to  the  innocent  party.     En.  March 

21,  1872.  Am'd.  1873-4,  191. 

Cal.Rep.Cit.   47,  64;   63,  77;   75,  46;   75,439;   83,465; 

97,  191;  102,  340;  106,  513;  106,  613;  106,  614;  114,  546. 

Subd.  1—112,  277;  134,  379;  134,  380.   Subd.  3  —  73,  429; 

80,  239;  124.  653.   Subd.  4  —  78,  316;  117,  409;  121,  95; 

124,  588;  129,  292. 

Discretion  of  court:    See  sec.  148. 

§  147.  Same.  The  court,  in  rendering  a  decree  of  di- 
vorce, must  make  such  order  for  the  disposition  of  the 
community  property,  and  of  the  homestead,  as  in  this 
chapter  provided,  and  whenever  necessary  for  that  pur- 
pose, may  order  a  partition  or  sale  of  the  property  and  a 
division  or  other  disposition  of  the  proceeds.  En.  March 
21,  1872.     Am'd.  1873-4,  192. 

Cal.Rep.Cit.  47,  64;   75,  414;   83,  465;   106,  513;   112,  278. 

§  148.     Such  an  action  subject  to  revision  on  appeal.    The 

disposition  of  the  community  property,  and  of  the  home- 
stead, as  above  provided,  is  subject  to  revision  on  appeal 
in  all  particulars,  including  those  which  are  stated  to  be 


§§  155,  156  HUSBAND    AND    WIFE.  S? 

in  the  discretion  of  the  court.     En.  March  21,  1872.     Am'd. 

1873-4,  192. 

Cal.Rep.Cit.     60.  580;     67,  212;     75,  415;     97,  191;     97,  192; 
111,     S9;   112,  278;   134,  379. 

CHAPTER    III. 

HUSBAND    AND    WIFE. 

§  155.  Mutual  obligations  of  husband  and  wife. 

§  156.  Rights  of  husband,  as  head  of  family. 

§  157.  In  other  respects  their  interest  separate. 

§  158.  Husband  and  wife  may  make  contracts. 

§   159.  How  tar  may  alter  their  legal  relations. 

§  160.  Consideration    for   agreement   of   separation. 

§   161.  May  be  joint  tenants,  etc. 

§   162.  Separate  property  of  the  wife. 

§  163.  Separate  property  of  the  husband. 

§  164.  Community     property.      Conveyances     by     married     woman. 

Limitations. 

§   165.  Inventory  of  separate  property  of  wife. 

§   166.  Filing  inventory  notice  of  wife's  title. 

§   167.  Community  property,  contract  by  wife. 

§   168.  Earnings  of  wife  not  liable  for  debts  of  husband. 

§  169.  Earnings  of  wife  when  living  separate,   separate  property. 

I  170.  Liability  for  debts  of  wife  contra(  ted  before  marriage. 

5  171.  Wife's    property    not    liable    for    debts    of    the    husband,    but 

liable  for  her  own  debts. 

§  172.  Power  of  the  husband  over  community  property. 

§   173.  Courtesy  and  dower  not  allowed. 

§  174.  Support  of  wife. 

§  175.  Husband  not  liable  when  abandoned  by  wife. 

§   176.  When  wife  must  support  husband. 

I  177.  Rights  of  husband  and  wife  governed  by  what. 

§  178.  Marriage   settlement  contracts,   how  executed. 

§   179.  To  be  acknowledged  and  recorded. 

§   180.  Effect  of  recording. 

§   181.  Minors  may  make  marriage  settlements. 

§  155.  MutuaJ  obligations  of  iiusband  and  wife.  Hus- 
band and  wife  contract  toward  each  otlier  obligations  of 
mutual  respect,  fidelity,  and  support.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  36;    82,  417;   92,  655;   117,  635;    130,  286. 

Mother  aiding  in  support  of  children:     Post,  sec.  196. 

Wife's  support  of  husband:     See  infra,  sec.  176. 

Husband's  support  of  wife:  See  infra,  sees.  174,  175,  and 
ante,  sec.  105,  where  the  failure  so  to  do  gives  ground  for 
divorce. 

§  156.  Rights  of  husband,  as  head  of  family.  Ine  hus- 
band is  the  head  of  the  family.  He  may  choose  any  reason- 
able place  or  mode  of  living,  and  the  wife  must  conform 
thereto.     En.  March  21,  1872. 

Cal.Rep.Cit.   67,  391;   123,  655;   137,  275. 


68 


HUSBAND     AND     WIFB. 


157-160 


Head  of  family  for  homestead  purposes:  See  post,  sec. 
1261. 

Parent  changing  residence  of  child:     Post,  sec.  213. 

Husband's  selection  of  dwelling-place,  desertion  if  wife 
does  not  conform  thereto:     Sec.  103. 

§  157.  In  other  respects  their  interests  separate.  Nei- 
ther husband  nor  wife  has  any  interest  in  the  property  of 
the  other,  but  neither  can  be  excluded  from  the  other's 
dwelling.    En.  March  21,  1872. 

Cal.Rep.Cit.  115.  272;   135,  125. 

§  158.  Husband  and  wife  may  make  contracts.  Either 
husband  or  wife  may  enter  into  any  engagement  or  transac- 
tion with  the  other,  or  with  any  other  person,  respecting 
property,  which  either  might  if  unmarried;  subject,  in 
transactions  between  themselves,  to  the  general  rules 
which  control  the  actions  of  persons  occupying  confidential 
relations  with  each  other,  as  defined  by  the  title  on  Trusts. 
En.  March  21,  1872. 


Cal.Rep.Cit 

52.  335 

53,  459 

53,  460 

54,  178; 

54,  179 

55,  58 

59,  513 

59,  516 

64,  398 

64,  399; 

67,  294 

67,  540 

70,  252 

70,  285 

73,  585 

74,  348  ; 

74,  349 

75,  528 

78,  312 

83,  278 

87,  649 

94,  461; 

96,  439 

96,  610 

96,  611 

97,  134 

97,  262 

98,  460; 

100,  279 

100,  280 

103,  100 

103,  101 

106,  455 

114,  568; 

115,  672 

120,  323, 

120,  324 

120,  326 

121,  94 

122,  366; 

123,  496 

126,  33 

129.  289 

130,  393 

134,  172 

134,  173; 

134,  174 

134,  175 

134,  606 

135,  317 

137,  693 

137,  695  ; 

137,  697 

§  159.  How  far  may  alter  their  legal  relations.  A  hus- 
band and  wife  cannot,  by  any  contract  with  each  other, 
alter  their  legal  relations,  except  as  to  property,  and  ex- 
cept that  they  may  agree,  in  writing,  to  an  immediate  sepa- 
ration, and  may  make  provision  for  the  support  of  either 
of  them  and  of  their  children  during  such  separation.  En. 
March  21,  1872.    Am'd.  1873-4,  193. 

Cal.Rep.Cit.  53,459;  54,178;  64,399;  73,585;  96,439; 
100,  279;  106,  455;  106,  545;  118,  501;  121,  94;  122,  366; 
126,     33. 

Marriage  settlements:     Post,  sees.  177-181. 

§  160.  Consideration  for  agreement  of  separation.  The 
mutual  consent  of  the  parties  is  a  sufficient  consideration 
for  such  an  agreement  as  is  mentioned  in  the  last  section. 
En.  March  21,  1872. 


§J  161-164  HUSBAND     AND     WIFE.  54 

§  161.     May  be  joint  tenants,  etc.     A  husband  and  wife 

may   hold  property  as  joint  tenants,   tenants   in  common, 

or  as  community  property.     En.  March  21,  1872. 

Cal.Rep.Cit.     53,  459;      53,  460;     70,  285;   116,  341;   116,  343; 
131,     67. 

§  162.  Separate  property  of  the  wife.  All  property  of 
the  wife,  owned  by  her  before  marriage,  and  that  acquired 
afterwards  by  gift,  bequest,  devise,  or  descent,  with  the 
rents,  issues,  and  profits  thereof,  is  her  separate  property. 
The  wife  may,  without  the  consent  pf  her  husband,  convey 
her  separate  property.     En.  March  21,  1872. 


Cal.Rep.Cit.     49,  192 ;  53,  459 

70,  426;      70,  284;  80,     67 

105,  691;   106,  612;  109,     59 
134,  606. 


54,  178 

87,  468 

110.  425 


55,     56;     55,     58 

94,  429  ;      95,  352 

132,  323;    134,   604 


§  163.     Separate  property  of  the  husband.     All  property 

owned  by  the  husband  before  marriage,  and  that  acquired 

afterwards  by  gift,   bequest,  devise,  or  descent,  with  the 

rents,  issues,  and  profits  thereof,  is  his  separate  property. 

En.  March  21,  1872. 

Cal.Rep.Cit.      70,284;      79,310;      87,468;      94,429;    106,612; 
109,     59;   132,  323;   134,  604. 

Community  property:      See  the  definition,  sec.  687. 
Community  property  liable  for  what  debts:    Sec.  167. 
Husband's  control  over  community  property:     Sec.  172. 
Descent  of  community  property:     Post,  sees.  1401,  1402. 

§  164.  Community  property.  Conveyances  by  married 
woman.  Limitations.  All  other  property  acquired  after 
marriage  by  either  husband  or  wife,  or  both,  is  community 
property;  but  whenever  any  property  is  conveyed  to  a 
married  woman  by  an  instrument  in  writing,  the  presump- 
tion is  that  the  title  is  thereby  vested  in  her  as  her  separate 
property.  And  in  case  the  conveyance  be  to  such  married 
woman  and  to  her  husband,  or  to  her  and  any  other  per- 
son, the  presumption  is  that  the  married  woman  takes  the 
part  conveyed  to  her,  as  tenant  in  common,  unless  a  dif- 
ferent intention  is  expressed  in  the  instrument,  and  the 
presumption  in  this  section  mentioned  is  conclusive  in 
favor  of  a  purchaser  or  incumbrancer  in  good  faith  and  for 
a  valuable  consideration.  And  in  cases  where  married 
women  have  conveyed  or  shall  hereafter  convey,  real  proi>- 


65  HUSBAND    AND    WIFE.  §§  165-167 

erty  which  they  acquired  prior  to  May  nineteenth,  eighteen 
hundred  and  eighty-nine,  the  husbands,  or  their  heirs  or 
assigns,  of  such  married  women,  shall  be  barred  from  com- 
mencing or  maintaining  any  action  to  show  that  said  real 
property  was  community  property,  or  to  recover  said  real 
property,  as  follows:  As  to  conveyances  heretofore  made 
from  and  after  one  year  from  the  date  of  the  taking  effect 
of  this  act;  and  as  to  conveyances  hereafter  made  from  and 
after  one  year  from  the  filing  for  record  in  the  recorder's 
office  of  such  conveyances  respectively.  En.  March  21, 
1872.     Am'd.  1889,  328;   1893,  71;   1897,  63. 

Cal.Rep.Cit.      70,284;  70,426;  80,     48;  83,529;      87,468; 

94,  429;      98,  267;  101,  565;  105,  691;  106,  361;   106,  612; 

109,     59;   109,     60;  122,  360;  122,  361;  124,  218;    125,     13; 

126,     32;   132,  322;  132,  323;  134,  405;  134,  406;   134,  604; 

134,  606;   136,     33;  138,  571. 

§  165.  Inventory  of  separate  property  of  wife.  A  full 
and  complete  inventory  of  the  separate  personal  property 
of  the  wife  may  be  made  out  and  signed  by  her,  acknowl- 
edged or  proved  in  the  manner  required  by  law  for  the 
acknowledgment  or  proof  of  a  grant  of  real  property  by  an 
unmarried  woman,  and  recorded  in  the  office  of  the  re- 
corder of  the  county  in  which  the  parties  reside.  En. 
March  21,  1872. 

Cal.Rep.Cit.     67,459;     81,     95;     81,     96;     83^  278 ;   102,  551 ; 
124,  202;   124,  203;   124,  204. 

§  166.  Filing  inventory  notice  of  wife's  title.  The  filing 
of  the  inventory  in  the  recorder's  office  is  notice  and  prima 
facie  evidence  of  the  title  of  the  wife.  En.  March  21,  1872. 
Am'd.  1873-4,  193. 

Cal.Rep.Cit.   67,  459;   81,  95;   81,  96;   83,  278;   124,  202. 

§  167.     Community    property,    contract     by    wife.      The 

property  of  the  community  is  not  liable  for  the  contracts 

of  the   wife,   made   after   marriage,   unless   secured   by   a 

pledge  or  mortgage  thereof  executed  by  the  husband.    En. 

March  11,  1872.     Am'd.  1873-4,  193. 

Cal.Rep.Cit.      53,459;      54,178;      54,623;      58,119;      62,639; 
96,  611;    112,  398;    116,  342. 

Debts  of  wife:     See  sees.  170,  171,  174. 
Community  property  is  liable  for  husband's  debts:    Sec. 
172. 
Necessaries  furnished  wife:     See  sec.  174. 


§§  168-172  HUSBAND     AND     WIFE.  <|5U 

§  168.  Earnings  of  wife  not  liable  for  debts  of  husband. 
The  earnings  of  the  wife  are  not  liable  for  the  debts  of  the 
husband.     En.  March  21,  1872. 

Cal.Rep.Cit.  53,  459;   63,  391;   70,  426;   116,  342;   121,  25. 

§  169.     Earnings  of  wife  when   living  separate,  separate 

property.     The   earnings    and    accumulations   of   the    wife, 

and  of  her  minor  children  living  with  her  or  in  her  custody, 

while  she  is   living  separate  from  her  husband,   are   the 

separate  property  of  the  wife.     En.  March  21,  1872. 

Cal.Rep.Cit.     53,459;     70,426;      71,426;     79,202;     8V,  468 ; 
94,  429;    116,  342. 

Sole  traders — As  to  married  women  becoming  sole  trad- 
ers, and  their  rights  and  liabilities  as  such,  see  Code  Civ. 
Proc,  sees.  1811-1821,  inclusive. 

§  170.  Liability  for  debts  of  wife  contracted  before 
nnarriage.  The  separate  property  of  the  husband  is  not  li- 
able for  the  debts  of  the  wife  contracted  before  the  mar- 
riage.    En.  March  21,  1872. 

Cal.Rep.Cit.'  119,  146;  53,  460;  70,  285;  71,  422;  121,  25; 
137,  276. 

§  171.  Wife's  property  not  liable  for  debts  of  the  hus- 
band, but  liable  for  her  own  debts.  The  separate  property 
of  the  wife  is  not  liable  for  the  debts  of  her  husband,  but 
is  liable  for  her  own  debts,  contracted  before  or  after 
marriage.     En.*March  21,  1872. 

Cal.Rep.Cit.   53,  460;   54,  178;   121,  25. 

§  172.  Power  of  the  husband  over  community  property. 
The  husband  has  the  management  and  control  of  the 
community  property,  with  the  like  absolute  power  of  dispo- 
sition, other  than  testamentary,  as  he  has  of  his  separate 
estate;  provided,  however,  that  he  cannot  make  a  gift  of 
such  community  property,  or  convey  the  same  without  a 
valuable  consideration,  unless  the  wife,  in  writing,  consent 
thereto;  and  provided  also,  that  no  sale,  conveyance  or  in- 
cumbrance of  the  furniture,  furnishings  and  fittings  of  the 
home,  or  of  the  clothing  and  wearing  apparel  of  the  wife 
or  minor  children,  which  is  community  property  shall  be 
made  without  the  written  consent  of  the  wife.  En.  March 
21,  1872.     Am'd.  1891,  425;  1900-01,  598. 

Cal.Rep.Cit.  58,119;  70,245;  81,242;  85,283;  87,46%; 
112,  397;  116,  340;  116,  342;  116,  344;  116,  350;  135,  125; 
137,  356. 


57  HUSBAND    AND    WIFE.  §§  173-177 

Testamentary  control  over  community  property:  See 
post,  sees.  1401,  1402,  which  prescribe  the  course  of  descent 
of  common  property,  and  limit  the  power  of  testamen- 
tary disposition  over  the  same. 

Community  property  generally:    See  supra,  sec.  164. 

Dissolution  of  the  community  by  divorce:  See  sees.  147, 
148. 

§  173.  Courtesy  and  dower  not  allowed.  No  estate  Is 
allowed  the  husband  as  tenant  by  courtesy  upon  the  death 
of  his  wife,  nor  is  any  estate  in  dower  allotted  to  the  wife 
upon  the  death  of  her  husband.     En.  March  21,  1872. 

Cal.Rep.Cit.  74,  103. 

§  174.  Support  of  wife.  If  the  husband  neglect  to  make 
adequate  provision  for  the  support  of  his  wife,  except  in 
the  cases  mentioned  in  the  next  section,  any  other  person 
may,  in  good  faith,  supply  her  with  articles  necessary  for 
her  support,  and  recover  the  reasonable  value  thereof  from 
the  husba.id.     En.  March  21,  1872.     Am'd.  1873-4,  193. 

Cal.Rep.Cit.   69,  522;    69,  523;   100,  346;   129,  20;   129,  23. 

§  175.  Husband  not  liable  when  abandoned  by  wife.  A 
husband  abandoned  by  his  wife  is  not  liable  for  her  support 
until  she  offers  to  return,  unless  she  was  justified,  by  his 
misconduct,  in  abandoning  him;  nor  is  he  liable  for  her 
support  when  she  is  living  separate  from  him,  by  agree- 
ment, unless  such  support  is  stipulated  in  the  agreement. 
En.  March  21,  1S72.    Am'd.  1873-4,  193. 

Cal.Rep.Cit.   54,  397;   69,  522. 

§  176.  When  wife  must  support  husband.  The  wife 
must  support  the  husband,  when  he  has  not  deserted  her, 
out  of  her  separate  property,  when  he  has  no  separate 
property,  and  there  is  no  community  property,  and  he  is 
unable,  from  infirmity,  to  support  himself.  En.  March  21, 
1872.     Am'd.  1873-4,  194. 

Cal.Rep.Cit.  117,  634;   117,  636. 

Mutual  obligations  of  support:     See  ante,  sec.  155. 

§  177.     Rights   of   husband    and   wife   governed    by  what. 

The  property  rights  of  husband  and  wife  are  governed  by 
this  chapter,  unless  there  is  a  marriage  settlement  con- 
taining stipulations  contrary  thereto.     En.  March  21,  1872. 

Cal.Rep.Cit.   87,   647. 


SS  178-181  HUSBAND    AND    WIFE.  58 

§  178.  Marriage  settlement  contracts,  how  executed.  All 
contracts  for  marriage  settlements  must  be  in  writing,  and 
executed  and  acknowledged  or  proved  in  like  manner  as 
a  grant  of  land  is  required  to  be  executed  and  acknowl- 
edged or  proved.    En.  March  21,  1872. 

Cal.Rep.Cit.  75,  300. 

§  179.  To  be  acknowledged  and  recorded.  When  such 
contract  is  acknowledged  or  proved,  it  must  be  recorded  in 
the  office  of  the  recorder  of  every  county  in  which  any  real 
estate  may  be  situated  which  is  granted  or  affected  by  such 
contract.     En.  March  21,  1872. 

§  180.  Effect  of  recording.  The  recording  or  nonrecord- 
Ing  of  such  contract  has  a  like  effect  as  the  recording  or 
nonrecording  of  a  grant  of  real  property.  En.  March  21, 
1872. 

§  181.  Minors  may  make  marriage  settlements.  A 
minor  capable  of  contracting  marriage  may  make  a  valid 
marriage  settlement.    En.  March  21,  1872. 

Cal.Rep.Cit.  87,  647. 


TITLE    II. 

PARENT  AND  CHILD. 

Chapter  I.    By  Birth,  §§  193-215. 

II.     By  Adoption,  §§  221-230. 


CHAPTER    I. 

CHILDREN     BY    BIRTH. 

§  193.     Legitimacy  of  children  born  in  wedlock. 

§   194.      Ciiildren  after  dissolution  of  marriage. 

§   195.      Who  may  dispute  the  legitimacy  of  a  child. 

I  196.  Obligation  of  parents  for  the  support  and  education  of  their 
children. 

§   197.      Custody  of  legitimate  child. 

§  198.  Husband  and  wife  living  separate,  neither  to  have  superior 
right  to  custody  of  children. 

§  199.  "When  husband  or  wife  may  bring  action  for  the  exclusive 
control  of  children.     Decree  in  such  cases. 

§  200.      Custody  of  an  illegitimate  child. 

§   201.     Allowance  to  parent. 

§   202.      Parent  cannot  control  the  property  of  child. 

§   203.     Remedy  for  parental  abuse. 

§  204.     "When  parental   authority  ceases. 

§  205.  Remedy  when  a  parent  dies  without  providing  for  the  sup- 
port of  his  child. 

§  206.  Reciprocal  duties  of  parents  and  children  in  maintaining 
each  other. 

§  207.      When  a  parent  is  liable  for  necessaries  supplied  to  a  child. 

§  208.      When  a  parent  is  not  liable  for  support  furnished  his  child. 

§  209.  Husband  not  bound  for  the  support  of  his  wife's  children  by 
a  former  marriage. 

§  210.     Compensation  and  support  of  adult  child. 

§  211.      Parent  may  relinquish  services  and  custody  of  child. 

§  212.     Wages  of  minors. 

§  213.     Right  of  parent  to  determine  the  residence  of  child. 

§  214.     Wife  in  certain  cases  may  obtain  custody  of  miuor  children. 

§  215.     Child  legitimized  by  marriage  of  parents. 

§  193.  Legitimacy  of  children  born  in  wedlock.  All  chil- 
dren l)orn  in  "wediocls;  are  presumed  to  be  legitimate.  En. 
March  21,  1872. 

Cal.Rep.Cit.  75,  381;   137,  300. 

Legitimacy  of  children  of  nullified  marriage:  See  ante, 
sec.  84. 

Legitimacy  in  cases  of  adultery:     See  ante,  sees.  144, 145. 

Rebutting  presumption  of  legitimacy:      Sec.   195,  infra. 

Legitimating  children  by  marriage  of  parents:  See  post, 
sec.  215. 


§§  194-iy7  CHILDREN     BY     BIRTH.  60 

Father  legitimating  child  by  acknowledging  it:  Sec. 
230;  and  compare  post,  sec.  1387. 

Mother  entitled  to  custody  of  illegitimate  unmarried 
minor:     See  post,  sec.  200. 

Illegitimate's  earnings:     See  sec.  200. 

Illegitimates,  heirs  to  whom:      Post,  sec.  1387. 

Mother  succeeds  to  estate  of  illegitimate:    Post,  sec.  1388. 

§  194.  Children  after  dissolution  of  marriage.  All  chil- 
dren of  a  woman  who  has  been  married,  born  within  ten 
months  after  the  dissolution  of  the  marriage,  are  presumed 
to  be  legitimate  children  of  that  marriage.  En.  March  21, 
1872.     Am'd.  1873-4,  194. 

Cal.Rep.Cit.  75,  381;   137,  134. 

§  195.  Who  may  dispute  the  legitimacy  of  a  child.  The 
presumption  of  legitimacy  can  be  disputed  only  by  the 
husband  or  wife,  or  the  descendant  of  one  or  both  of  them. 
Illegitimacy,  in  such  case,  may  be  proved  like  any  other 
fact.     En.  March  21,  1872. 

Cal.Rep.Cit.  75,  381;   137,  303. 

§  196.  Obligation  of  parents  for  the  support  and  educa- 
tion of  their  children.  The  parent  entitled  to  the  custody 
of  a  child  must  give  him  support  and  education  suitable 
to  his  circumstances.  If  the  support  and  education  which 
the  father  of  a  legitimate  child  is  able  to  give  are  inade- 
quate, the  mother  must  assist  him  to  the  extent  of  her 
ability.     En.   March  21,  1872. 

Cal.Rep.Cit.   71,  497;   95,  378;   109,  648;   130,  382;   134,  116. 

Action  to  enforce  parental  duty:      Sec.  203,  infra. 

Third  person  supplying  necessaries:  Sees.  207,  208, 
infra. 

Willful  failure  to  support  child  is  a  misdemeanor:  Pen. 
Code,  sec.  270. 

Deserting  child  is  a  felony:     Pen.  Code,  sec.  271. 

Disposing  of  child  for  mendicant  purposes:  See  Pen. 
Code,  sec.  272. 

Supporting  poor  relatives:      See  sec.  206,  infra. 

Injury  to  child,  action  for:     See  Code  Civ.  Proc,  sec.  376. 

§  197.  Custody  of  legitimate  child.  The  father  of  a 
legitimate   unmarried   minor  child  is   entitled   to   its   cus- 


61  CHILDREN     BY     BIRTH.  §§  198,  199 

tody,  services,  and  earnings;  but  he  cannot  transfer  such 
custody  or  services  to  any  other  person,  except  the  mother, 
without  her  written  consent,  unless  she  has  deserted  him, 
or  is  living  separate  from  him  by  agreement.  If  the  father 
be  dead,  or  be  unable,  or  refuse  to  take  the  custody,  or  has 
abandoned  his  family,  the  mother  is  entitled  thereto.  En. 
March  21,  1872.     Am'd.  1873-4,  194. 

Cal.Rep.Cit.   95,  378;   130,  3S2  ;   134,  116;   137,  276. 

Relinquishing  right  to  child's  earnings:     Sec.  211,  infra. 

Property  of  child,  parent,  as  such,  has  no  control  of: 
Sec.  202,  infra. 

Guardian,  appointment  of:     See  post,  sees.  241  et  seq. 

§  198.  Husband  and  wife  living  separate,  neither  to 
have  superior  right  to  custody  of  children.  The  husband 
and  father,  as  such,  has  no  rights  superior  to  those  of  the 
wife  and  mother,  in  regard  to  the  care,  custody,  education, 
and  control  of  the  children  of  the  marriage,  while  such  hus- 
band and  wife  live  separate  and  apart  from  each  other. 
En.  March  21,  1872. 

Cal.Rep.Cit.   137,   276. 

Custody  of  child  in  divorce  causes:     See  ante,  sec.  138. 

§  199.  When  husband  or  wife  may  bring  action  for  the 
exclusive  control  of  children.  Decree  in  such  cases.  With- 
out application  for  a  divorce,  the  husband  or  the  wife  may 
bring  an  action  for  the  exclusive  control  of  the  children  of 
the  marriage;  and  the  court  may,  during  the  pendency  of 
such  action,  or  at  the  final  hearing  thereof,  or  afterwards, 
make  such  order  or  decree  in  regard  to  the  support,  care, 
custody,  education,  and  control  of  the  children  of  the  mar- 
riage, as  may  be  just,  and  in  accordance  with  the  natural 
rights  of  the  parents  and  the  best  interests  of  the  children, 
and  may  at  any  time  thereafter  amend,  vary,  or  modify 
such  order  or  decree,  as  the  natural  rights  and  the  inter- 
ests of  the  parties,  including  the  children,  may  require. 
En.  March  21,  1872. 

Cal.Rep.Cit.   109,   649. 

Compare  with  sec.  214,  infra. 

Control  of  children  pending  divorce  proceedings:  See 
ante,  sec.  138. 

Awarding  custody  of  child — Considerations  that  should 
govern  the  court:     Post,  sec.  246. 


S§  200-205  CHILDREN    BY    BIRTH.  62 

§200.  Custody  of  an  illegitimate  child.  The  mother  of 
an  illegitimate  unmarried  minor  is  entitled  to  its  custody, 
services,  and  earnings.    En.  March  21,  1872. 

Mother  the  heir  of  illegitimate  child:     Post,  sec.  1388. 

§201.  Allowance  to  parent.  The  proper  court  may  di- 
rect an  allowance  to  be  made  to  the  parent  of  a  child,  out 
of  its  property,  for  its  past  or  future  support  and  educa- 
tion, on  such  conditions  as  may  be  proper,  whenever  such 
direction  is  for  its  benefit.    En.  March  21,  1872. 

§202.  Parent  cannot  control  the  property  of  child.  The 
parent,  as  such,  has  no  control  over  the  property  of  the 
child.     En.   March  21,  1872. 

Same  principle:     Post,  sec;  242. 

Guardian  of  minor's  estate:     See  post,  sees.  241    et  seq. 

§  203.  Remedy  for  parental  abuse.  The  abuse  of  paren- 
tal authority  is  the  subject  of  judicial  cognizance  in  a  civil 
action  brought  by  the  child,  or  by  its  relative  within  the 
third  degree,  or  by  the  supervisors  of  the  county  where 
the  child  resides;  and  when  the  abuse  is  established,  the 
child  may  be  freed  from  the  dominion  of  the  parent,  and 
the  duty  of  support  and  education  enforced.  En.  March  21, 
1872. 

Cal.Rep.Cit.  103,  356;  103,  357;  109,  647;  109,  648;  109,  649; 
109,  650;  109,  651;  109,  653;  109,  654;  109,  655;  109,  657; 
109,  659;    109,  660;    109,  661;    124,  678. 

Parental  duty:      See  ante,  sec.  196. 

Omission  to  supply  a  child  with  necessaries  is  a  misde- 
meanor, and  desertion  is  punished  by  imprisonment:  Pen. 
Code,  sees.  270,  271. 

§  204.  When  parental  authority  ceases.  The  authority 
of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of 
the  person  of  a  child; 

2.  Upon  the  marriage  of  the  child;  or, 

3.  Upon  its  attaining  majority.     En.  March  21,  1872. 
Cal.Rep.Cit.  109,  649  ;   119,  601.    Subd.  3—119,  601. 

§  205.  Remedy  when  a  parent  dies  without  providing  for 
the  support  of  his  child.  If  a  parent  chargeable  with  the 
support  of  a  child  dies,  leaving  it  chargeable  to  the  county. 


63  CHILDREN     BY    BIRTH.  §§  206-209 

and  leaving  an  estate  sufficient  for  its  support,  the  super- 
visors of  the  county  may  claim  provision  for  its  suppor-t 
from  the  parent's  estate  by  civil  action,  and  for  this  pur- 
pose may  have  the  same  remedies  as  any  creditors  against 
that  estate,  and  against  the  heirs,  devisees,  and  next  of 
kin  of  the  parent.  En.  March  21,  1872. 
Cal.Rep.Cit.  109,  649. 

§  206.  Reciprocal  duties  of  parents  and  children  in  main- 
taining each  other.  It  is  the  duty  of  the  father,  the  mother, 
and  the  children  of  any  poor  person  vv^ho  is  unable  to  main- 
tain himself  by  work,  to  maintain  such  person  lo  the  ex- 
tent of  their  ability.  The  promise  of  an  adult  child  to  pay 
for  necessaries  previously  furnished  to  such  parent  is  bind- 
ing.    En.  March  21,  1872. 

Cal.Rep.Cit.   124,   54. 

Mother  supporting  children:     Ante,  sec.  196. 
Wife  supporting  husband:     Ante,  sec.  176. 

§207.  When  a  parent  is  liable  for  necessaries  supplied 
to  a  child.  If  a  parent  neglects  tQ  provide  articles  neces- 
sary for  his  child  who  is  under  his  charge,  according  to  his 
circumstances,  a  third  person  may  in  good  faith  supply 
such  necessaries,  and  recover  the  reasonable  value  thereof 
from  the  parent.     En.  March  21,  1872. 

Cal.Rep.Cit.   109,   649. 

Infant  liable  on  contract  for  necessaries:  See  ante,  sec. 
36. 

§  208.  When  a  parent  is  not  liable  for  support  furnished 
his  child.  A  parent  is  not  bound  to  compensate  the  other 
parent,  or  a  relative,  for  the  voluntary  support  of  his  child, 
without  an  agreement  for  compensation,  nor  to  compen- 
sate a  stranger  for  the  support  of  a  child  who  has  aban- 
doned the  parent  without  just  cause.    En.  March  21,  1872. 

Cal.Rep.Cit.   125,   72. 

§209.  Husband  not  bound  for  the  support  of  his  wife's 
children  by  a  former  marriage.  A  husband  is  not  bound 
to  maintain  his  wife's  children  by  a  former  husband;  but 
If  he  receives  them  into  his  family  and  supports  them,  it 
is  presumed  that  he  does  so  as  a  parent,  and,  where  such 


§§210-214  CHILDKEN     BY     BIRTH.  64 

is  the  case,  they  are  not  liable  to  him  for  their  support, 
nor  he  to  them  for  their  services.    En.  March  21,  1872. 
Cal.Rep.Cit.   74,  321;   124,  70;   125.  70. 

§210.  Compensation  and  support  of  adult  child.  Where 
a  child,  after  attaining  majority,  continues  to  serve  and  to 
be  supported  by  the  parent,  neither  party  is  entitled  to 
compensation,  in  the  absence  of  an  agreement  therefor. 
En.  March  21,  1872. 

§211.  Parent  may  relinquish  services  and  custody  of 
child.  The  parent,  whether  solvent  or  insolvent,  may  re- 
linquish to  the  child  the  right  of  controlling  him  and  re- 
ceiving his  earnings.  Abandonment  by  the  parent  is  pre- 
sumptive evidence  of  such  relinquishment.  En.  March  21, 
1872. 

Cal.Rep.Cit.  115,   151. 

§212.  Wages  of  minors.  The  wages  of  a  minor  em- 
ployed in  service  may  be  paid  to  him  until  the  parent  or 
guardian  entitled  thereto  gives  the  employer  notice  that  he 
claims  such  wages.    En.  March  21,  1872.    Am'd.  1873-4,  194. 

§213.  Right  of  parent  to  determine  the  residence  of 
child.  A  parent  entitled  to  the  custody  of  a  child  has  a 
right  to  change  his  residence,  subject  to  the  power  of  the 
proper  court  to  restrain  a  removal  which  would  prejudice 
the  rights  or  welfare  of  the  child.    En.  March  21,  1872. 

Residence,  husband's  right  to  change:     See  ante,  sec.  156. 

§  214.  Wife  in  certain  cases  may  obtain  custody  of  mi- 
nor children.  When  a  husband  and  wife  live  in  a  state  of 
separation,  without  being  divorced,  any  court  of  competent 
jurisdiction,  upon  application  of  either,  if  an  inhabitant  of 
this  state,  may  inquire  into  the  custody  of  any  unmarried 
minor  child  of  the  marriage,  and  may  award  the  custody 
of  such  child  to  either,  for  such  time  and  under  such 
regulations  as  the  case  may  require.  The  decision  of  the 
court  must  be  guided  by  the  rules  prescribed  in  section 
246.     En.  March  21,  1872. 

See  act  of  March  7.  1874,  relative  to  orphans  and  aban- 
doned children:     Stats.  1873-4,  p.  297.     Am'd.  1877-8,  p.  82. 

Custody  of  child  without  divorce  of  parents:  See  ante, 
sec.  199. 


65  ADOPTION.  §§215-224 

Custody  of  child  pending  divorce  proceedings:  See  sec. 
138. 

§215.  Child  legitimized  by  marriage  of  parents.  A  child 
born  before  wedlock  becomes  legitimate  by  the  subsequent 
marriage  of  its  parents.     En.  Stats.  1873-4,  195. 

Cal.Rep.Cit.  57,  491;   96,  563;   96,  570;   96,  572. 


CHAPTER    II. 

ADOPTION. 

§  221.  Child  may  be  adopted. 

§  222.  Who  may  adopt. 

§  223.  Consent  of  wife  necessary. 

I  224.  Consent  of  child's  parents.     Children  in  orphan  asylums. 

§  225.  Consent  of  child. 

§  226.  Proceedings  on  adoption. 

§  227.  Judge's  order.  • 

'  I  228.  Effect  of  adoption. 

§  229.  Effect  on  former  relations  of  child. 

§  230.  Adoption  of  illegitimate  child. 

§  221.  Child  may  be  adopted.  Any  minor  child  may  be 
adopted  by  any  adult  person,  in  the  cases  and  subject  to 
the  rules  prescribed  in  this  chapter.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  381;   81,  441;    81,  446;    102,  79. 

§  222.  Who  may  adopt.  The  person  adopting  a  child 
must  be  at  least  ten  years  older  than  the  person  adopted. 
En.  March  21.  1872.     Am'd.  1873-4,  195. 

Cal.Rep.Cit.   9S,   537. 

§  223.  Consent  of  wife  necessary.  A  married  man,  not 
lawfully  separated  from  his  wife,  cannot  adopt  a  child 
without  the  consent  of  his  wife,  nor  can  a  married  woman, 
not  thus  separated  from  her  husband,  without  his  consent, 
provided  the  husband  or  wife,  not  consenting,  is  capable 
of  giving  such  consent.  En.  March  21,  1872.  Am'd.  1873-4, 
195. 

Cal.Rep.Cit.   98,  537  ;   102,  79. 

§  224.  Consent  of  child's  parents.  Children  in  orphan 
asylums.  A  legitimate  child  can  not  be  adopted  without 
the  consent  of  its  parents,  if  living;  nor  an  illegitimate 
child  without  the  consent  of  its  mother,  if  living;  except 
that  consent  is  not  necessary  from  a  father  or  mother  de- 
prived of  civil  rights,  or  adjudged   guilty  of  adultery  or 


§§  225,  226  ADOPTION.  ~  66 

cruelty,  and  for  either  cause  divorced,  or  adjudged  to  be 
habitually  intemperate  in  the  use  of  intoxicants,  or  who 
has  been  judicially  deprived  of  the  custody  of  the  child 
on  account  of  cruelty  or  neglect;  neither  is  the  consent  of 
any  one  necessary  in  the  case  of  any  abandoned  child; 
provided,  however,  that  any  such  child,  being  a  half  or- 
phan, and  kept  and  maintained  in  any  orphan  asylum  in 
this  state  for  more  than  two  years,  may  be  adopted  with 
the  consent  of  the  managers  of  such  orphans'  home  with- 
out the  consent  of  the  parent  unless  such  parent  has  paid 
toward  the  expenses  of  maintenance  of  such  half  orphan 
at  least  a  reasonable  sum  during  the  said  time,  if  able 
to  do  so.  Any  child  deserted  by  both  parents,  or  left  in 
the  care  and  custody  of  another  by  its  parent  or  parents, 
without  any  agreement  or  provision  for  its  support,  for  the 
period  of  one  year,  is  deemed  to  be  an  abandoned  child 
within  the  meaning  of  this  section,  and  where  the  parent 
is  a  non-resident  of  this  state  such  child  may  without  the 
consent  of  either  parent  be  adopted  with  the  consent  of 
the  managers  of  such  home  whenever  it  has  been  left  in 
such  home  for  more  than  one  year.  En.  March  21,  1872. 
Am'd.  1891,  24;  1893,  112;  1895,  39;  1903,  114. 

Cal.Rep.Cit.  57,  491;   98,  537;   102,  81;   106,  379;   106,  381. 

§225.  Consent  of  child.  The  consent  of  a  child,  if  over 
the  age  of  twelve  years,  is  necessary  to  its  adoption.  En. 
March  21,  1872. 

Cal.Rep.Cit.  98,  537. 

§226.  Proceedings  on  adoption.  The  person  adopting  a 
child,  and  the  child  adopted,  and  the  other  persons,  if 
within  or  residents  of  this  state,  whose  consent  is  neces- 
sary, must  appear  before  the  judge  of  the  superior  court 
of  the  county  where  the  person  adopting  resides,  and  the 
necessary  consent  must  thereupon  be  signed  and  an  agree- 
ment be  executed  by  the  person  adopting,  to  the  effect 
that  the  child  shall  be  adopted  and  treated  in  all  respects 
as  his  own  lawful  child  should  be  treated.  If  the  persons 
whose  consent  is  necessary  are  not  within  or  are  not  resi- 
dents of  this  state,  then  their  written  consent,  duly  proved 
or  acknowledged,  according  to  sections  eleven  hundred 
and  eighty-two  and  eleven  hundred  and  eighty-three  of  this 


67  '  ADOPTION.  §§  227-230 

code,  shall  be  filed  in  said  superior  court  at  the  time  of  the 
application  for  adoption.  En.  March  21,  1872.  Am'd. 
1875-6,  69;   1880,  4. 

Cal.Rep.Cit.      87,640;      96,567;      98,537;      98,547;      98,552; 
102,     77. 

§  227.  Judge's  order.  The  judge  must  examine  all 
persons  appearing  before  him  pursuant  to  the  last  section, 
each  separately,  and  if  satisfied  that  the  interests  of  the 
child  will  be  promoted  by  the  adoption,  he  must  make 
an  order  declaring  that  the  child  shall  thencc^'orth  be  re- 
garded and  treated  in  all  respects  as  the  child  of  the 
person  adopting.     En.  March  21,  1872. 

Cal.Rep.Cit.     57,491;     75.218;     75,219;     98,536;     98,537; 
98,  538;      98,  547;   102,     77;   102.     80;   106,  565;   106,  566; 
131,  470. 

§  228.  Effect  of  adoption.  A  child,  when  adopted,  may 
take  the  family  name  of  the  person  adopting.  After  adop- 
tion, the  two  shall  sustain  towards  each  other  the  legal 
relation  of  parent  and  child,  and  have  all  the  rights  and  be 
subject  to  all  the  duties  of  that  relation.  En.  March  21, 
1872.     Am'd.  1873-4,  195. 

Cal.Rep.Cit.   57,  491;   75,  219;   106,  379;   131,  182. 

§229.  Effect  on  former  relations  of  child.  The  parents 
of  an  adopted  child  are,  from  the  time  of  the  adoption, 
relieved  of  all  parental  duties  towards,  and  all  responsi- 
bility for,  the  child  so  adopted,  and  have  no  right  over  it. 
En.  March  21,  1872. 

Cal.Rep.Cit.  106,  379. 

§230.  Adoption  of  illegitimate  child.  The  father  of  an 
illegitimate  child,  by  publicly  acknowledging  it  as  his  own, 
receiving  it  as  such,  with  the  consent  of  his  wife,  if  he  is 
married,  into  his  family,  and  otherwise  treating  it  as  if  it 
were  a  legitimate  child,  thereby  adopts  it  as  such;  and 
such  child  is  thereupon  deemed  for  all  purposes  legitimate 
from  the  time  of  its  birth.  The  foregoing  provisions  of 
this  chapter  do  not  apply  to  such  an  adoption.  En.  March 
21,  1872. 


Cal.Rep.Cit 
75.  382 
81,  446 
96.  560 
96.  592 
135.  388 


52,     86;     52,     87;      56,419;  57.491;  75.381; 

81,  421;      81,  441;      81,  442;  81,  444;  81,  445; 

81,447;      81,457;      96,557;  96,558;  96,559; 

96,572;      96,573;      96,576;  96,582;  96,591; 

96,  594;      96,  595;   102,  262;  127,  434;  135,  386; 

136,  395;   136,  396;   137,  299;  137,  300. 


§§  236  240  GUARDIAN     AND     WARD,  68 


TITLE    III. 

GUARDIAN    AND    WARD. 

§  236.  Guardian,  what. 

§   237.  Ward,  what. 

§   238.  Kinds  of  guardians. 

§  239.  General   guardian,   what. 

§  240.  Special  guardian,  what. 

§  241.  Appointment  by  parent. 

§  242.  No  person  guardian  of  estate  without  appointment. 

§  243.  Appointment  by  court. 

§  244.  Same. 

§  245.  Jurisdiction. 

§   246.  Rules  for  awarding  custody  of  minor. 

§  247.  Powers  of  guardian  appointed  by  court. 

§  248.  Duties  of  guardian  of  the  person. 

§   249.  Duties  of  guardian  of  estate. 

§  250.  Relation  confidential. 

§   251.  Guardian   under  direction  of  court. 

§   252.  Death  of  a  joint  guardian. 

§  253.  Removal  of  guardian. 

§  254.  Guardian  appointed  by  parent,  how  superseded. 

§  255.  Suspension  of  power  of  guardian. 

§  256.  Release  by  ward. 

§  257.  Guardian's   discharge. 

§  258.  Insane  persons. 

§236.  Guardian,  what.  A  guardian  is  a  person  ap- 
pointed to  take  care  of  the  person  or  property  of  another. 
En.  March  21,  1872. 

Cal.Rep.Cit.  117.   644. 

§  237.  Ward,  what.  The  person  over  whom  or  over 
whose  property  a  guardian  is  appointed,  is  called  his  ward. 
En.  March  21,  1872. 

§238.     Kinds  of  guardians.     Guardians  are  either: 

1.  General;  or, 

2.  Special.     En.  March  21,  1872. 
Testamentary  guardians:      See  sec.  241. 

Guardians  ad  litem:     See  Code  Civ.  Proc,  sees.  372,  373. 

§  239.  General  guardian,  what.  A  general  guardian  is  a 
guardian  of  the  person  or  of  all  the  property  of  the  ward 
within  this  state,  or  of  both.    En.  March  21,  1872. 

§  240.  Special  guardian,  what.  Every  other  is  a  special 
guardian.    En.  March  21,  1872. 


69  GUARDIAN     AND     WARD.  §§  241-244 

§  241.  Appointment  by  parent.  A  guardian  of  the  per- 
son or  estate,  or  of  both,  of  a  child  born,  or  likely  to  be 
born,  may  be  appointed  by  will  or  by  deed,  to  take  effect 
upon  the  death  of  the  parent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the 
written  consent  of  the  mother;  or  by  either  parent,  if  the 
other  be  dead  or  incapable  of  consent; 

2.  If  the  child  be  illegitimate,  by  the  mother.    En.  March 

21,  1S72.     Am'd.  1873-4,  195. 

Cal.Rep.Cit.     84,  596;     84,  597;   109.  646;   109,  647;   128,  218; 
130,  3'S3. 

Bond  of  testamentary  guardian:     Code  Civ.  Proc,  sec. 

1758. 

§  242.  No  person  guardian  of  estate  without  appoint- 
ment. No  person,  whether  a  parent  or  otherwise,  has  any 
power  as  guardian  of  property,  except  by  appointment  as 
hereinafter  provided.  En.  March  21,  1872. 

Same  principle  as  expressed  in  sec.  202,  ante.  And  as 
to  power  of  guardian  appointed  by  the  court,  see  sec.  247, 
infra. 

§  243.  Appointment  by  court.  A  guardian  of  the  person 
or  property,  or  both,  of  a  person  residing  in  this  state,  who 
is  a  minor,  or  of  unsound  mind,  may  be  appointed  in  all 
cases,  other  than  those  named  in  section  two  hundred  and 
forty-one,  by  the  superior  court,  as  provided  in  the  Code 
of  Civil  Procedure.  En.  March  21,  1872.  Am'd.  1873-4,  196; 
1880,   4. 

Cal.Rep.Cit.      84,  596;   109,  646;   109,  647;   109,  649;   128,  218; 
130,  383. 

Judicial  appointment  of  guardian  of  minor:  See  Code 
Civ.  Proc,  sec.  1747. 

Judicial  appointment  of  guardian  of  insane  or  incom- 
petent persons:    See  Code  Civ  Proc,  sec.  1763. 

Act  providing  for  appointment  of  guardian  of  orphans: 
See  post.  Appendix,  title  Infancy. 

§  244.  Same.  A  guardian  of  the  property  within  this 
state  of  a  person  not  residing  therein,  who  is  a  minor,  or  of 
unsound  mind,  may  be  appointed  by  the  superior  court. 
En.  March  21,  1872.    Am'd.  1880,  4. 


5§  245-247  GUARDIAN    AND    WARD.  70 

Nonresident  wards,  appointment  of  guardian:  See  Code 
Civ.  Proc,  sees.  1793  et  seq. 

§  245.  Jurisdiction.  In  all  cases  the  court  making  the 
appointment  of  a  guardian  has  exclusive  jurisdiction  to 
control  him.     En.  March  21,  1872. 

Control  over  guardian:    See  Code  Civ.  Proc,  sec.  1771. 

§246.  Rules  for  awarding  custody  of  minor.  In  award- 
ing the  custody  of  a  minor,  or  in  appointing  a  general 
guardian,  the  court  or  officer  is  to  be  guided  by  the  fol- 
lowing considerations: 

1.  By  what  appears  to  be  for  the  best  interest  of  the 
child  in  respect  to  its  temporal  and  its  mental  and  moral 
welfare;  and  if  the  child  be  of  a  sufficient  age  to  form  an 
intelligent  preference,  the  court  may  consider  that  pref- 
erence in  determining  the  question. 

2.  As  between  parents  adversely  claiming  the  custody 
or  guardianship,  neither  parent  is  entitled  to  it  as  of 
right,  but  other  things  being  equal,  if  the  child  be  of  ten- 
der years,  it  should  be  given  to  the  mother;  if  it  be  of 
an  age  to  require  education  and  preparation  for  labor  or 
business,  then  to  the  father. 

3.  Of  two  persons  equally  entitled  to  the  custody  in 
other  respects,  preference  is  to  be  given  as  follows: 

1.  To  a  parent. 

2.  To  one  who  was  indicated  by  the  wishes  of  a  deceased 
parent. 

3.  To  one  who  already  stands  in  the  position  of  a 
trustee  of  a  fund  to  be  applied  to  the  child's  support. 

4.  To  a  relative.     En.  March  21,  1872.     Am'd.  1873-4,  196. 
Cal.Rep.Cit.   Subd.   1—130,  381.    Subd.   3—109,  661. 

Custody  of  children  generally,  pending  divorce:  See 
sec.  138;  without  divorce:    See  sees.  199,  214. 

Custody  of  child  where  parents  separated:  See  ante, 
sec.  214. 

§247.  Powers  of  guardian  appointed  by  court.  A 
guardian  appointed  by  a  court  has  power  over  the  person 
and  property  of  the  ward,  unless  otherwise  ordered:  En. 
March  21,  1872. 

Cal.Rep.Cit.   117,   644. 

Property  of  ward,  control  over:    See  sec.  242. 


71  GUARDIAN     AND     WARD.  §§  218  252 

§248.  Duties  of  guardian  of  the  person.  A  guardian  of 
the  person  is  charged  with  the  custody  of  the  ward,  and 
must  look  to  his  support,  health,  and  education.  He  may 
fix  the  residence  of  the  ward  at  any  place  within  the 
state,  but  not  elsewhere,  without  permission  of  the  court. 
En.  March  21,  1872. 

Cal.Rep.Cit.   123,  218;   128,  218. 

Compare  sec.  251. 

§  249.  Duties  of  guardian  of  estate.  A  guardian  of  the 
property  must  keep  safely  the  property  of  his  ward.  He 
must  Hot  permit  any  unnecessary  waste  or  destruction  of 
the  real  property,  nor  make  any  sale  of  such  property, 
without  the  order  of  the  superior  court,  but  must,  so  far 
as  it  is  in  his  power,  maintain  the  same,  with  its  build- 
ings and  appurtenances,  out  of  the  income  or  other  prop- 
erty of  the  estate,  and  deliver  it  to  the  ward,  at  the  close 
of  his  guardianship,  in  as  good  condition  as  he  received  it. 
En.  March  21,  1872.     Am'd.  1873-4,  197;  1880,  5. 

Cal.Rep.Cit.   117,  644;   121,  472;   124,  157;   134,  116. 

Sale  of  ward's  estate:  See  Code  Civ.  Proc,  sees.  1777 
et  seq. 

Guardian  using  principal  as  well  as  income:  See  Code 
Civ.  Proc,  sec.  1770. 

§  250.  Relation  confidential.  The  relation  of  guardian 
and  ward  is  confidential,  and  is  subject  to  the  provisions 
of  the  title  on  Trust.     En.  March  21,  1872. 

Cal.Rep.Cit.   116,   391. 

Trusts:    See  post,  sees.  2215  et  seq. 

§251.  Guardian  under  direction  of  court.  In  the  man- 
agement and  disposition  of  the  person  or  property  com- 
mitted to  him,  a  guardian  may  be  regulated  and  controlled 
by  the  court.    En.  March  21,  1872. 

Residence  of  ward:    See  sec.  248,  ante. 

§  252.  Death  of  a  joint  guardian.  On  the  death  of  one  of 
two  or  more  joint  guardians,  the  power  continues  to  the 
survivor  until  a  further  appointment  is  made  by  the  court. 
En.  March  21,  1872. 

Survival  of  trust:    See  sec.  2288,  post. 


IJ253-2L.6  GUARDIAN    AND    WARD.  72 

§  253.  Removal  of  guardian.  A  guardian  may  be  re- 
moved by  the  superior  court  for  any  of  the  following 
causes : 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  duties; 

3.  For  incapacity  to  perform  its  duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faithful  per- 
formance of  his  duties; 

6.  For  removal  from  the  state; 

7.  In  the  case  of  a  g.uardian  of  the  property,  for  in- 
solvency; or, 

8.  When  it  is  no  longer  proper  that  the  ward  should 
be  under  guardianship.    En.  March  21,  1872.    Am'd.  1880,  5. 

Removal  of  guardian:     See  Code  Civ.  Proc,  sec.  1801. 

§  254.  Guardian  appointed  by  parent,  how  superseded. 
The  power  of  a  guardian  appointed  by  a  parent  is  super- 
seded: 

1.  By  his  removal,  as  provided  by  section  253; 

2.  By  the  solemnized  marriage  of  the  ward;  or, 

3.  By  the  ward's  attaining  majority.    En.  March  21,  1872. 
Cal.Rep.Cit.   Subd.   3—121,   474. 

Marriage  of  ward  terminates  guardianship:  Code  Civ. 
Proc,  sec.  1802. 

§  255.  Suspension  of  power  of  guardian.  The  power  of 
a  guardian  appointed  by  a  court  is  suspended  only: 

1.  By  order  of  the  court;  or, 

2.  If  the  appointment  was  made  solely  because  of  the 
ward's  minority,  by  his  attaining  majority;  or, 

3.  The  guardianship  over  the  person  of  the  ward,  by  the 
marriage  of  the  ward.  En.  March  21,  1872.  Am'd.  1873-4, 
197. 

Marriage  of  ward  terminates  guardianship:  Code  Civ. 
Proc,  sec.  1802. 

§  256.  Release  by  ward.  After  a  w^ard  has  come  to  his 
majority,  he  may  settle  accounts  w-ith  his  guardian,  and 
give  him  a  release,  which  is  valid  if  obtained  fairly  and 
without  undue  influence.     En.  March  21,  1872. 


73  MASTER     AND     SERVANT.  §§  257-2G4 

§  257.  Guardian's  discharge.  A  guardian  appointed  by 
a  court  is  not  entitled  to  his  discharge  until  one  year 
after  the  ward's  majority.    En.  March  21,  1872. 

Resignation  of  guardian:    See  Code  Civ.  Proc,  sec.  1801. 

§258.  Insane  persons.  A  person  of  unsound  mind  may 
be  placed  in  an  asylum  for  such  persons,  upon  the  order 
of  the  superior  court  of  the  county  in  which  he  resides, 
as  follows: 

1.  The  court  must  be  satisfied,  upon  examination  in 
open  court  and  in  the  presence  of  such  person,  from 
the  testimony  of  two  reputable  physicians,  that  such 
person  is  of  unsound  mind,  and  unfit  to  be  at- large; 

2.  After  the  order  is  granted,  the  person  alleged  to  be 
of  unsound  mind,  his  or  her  husband  or  wife,  or  relative 
to  the  third  degree,  or  any  citizen,  may  demand  an  inves- 
tigation before  a  jury,  which  must  be  conducted  in  all 
respects  as  under  an  inquisition  of  lunacy.  En.  March  21, 
1872.     Am'd.  1880,  5.    • 

Guardianship  of  lunatic:    See  Code  Civ.  Proc,  sec.  1763. 


TITLE    IV. 

MASTER    AND    SERVANT. 

§  264.  Minors  may  apprentice  thiemselves. 

§  265.  Consent  of  parents. 

§  266.  V^ritten   consent. 

§  267.  Executors  may  bind. 

I  268.  Supervisors  may  bind  out. 

§  269.  Town  officers. 

§  270.  Age  of  apprentice  to  be  inserted  in  Indentures. 

§  271.  Indentures,  conditions  in. 

§  272.  Same. 

§  273.  Deposit  Of  indentures  with  county  clerk. 

§  274.  Alien  minors. 

§  275.  Contract  under  preceding  section  to  be  acknowledged. 

I  276.  Causes  for  annulling  indentures. 

§  264.  Minors  may  apprentice  themselves.  Every  minor, 
with  the  consent  of  the  persons  or  oflicers  hereinafter 
mentioned,  may,  of  his  own  free  will,  bind  himself,  in 
writing,  to  serve  as  clerk,  apprentice,  or  servant,  in  any 
profession,  trade,  or  employment,  during  his  minority;  and 
such  binding  shall  be  as  valid  and  effectual  as  if  such 
Civ.   Code— 4 


§§  265-2G7  MASTER    AND    SERVANT.  74 

minor  was  of  full  age  at  the  time  of  making  the  engage- 
ment.    En.  March  21,  1872. 

Aiding  apprentice  to  ifun  away  a  misdemeanor:  Pen. 
Code,  sec.  646. 

See  Act  of  April  3,  1876,  relative  to  apprentices:  Post, 
Appendix,  title  Apprentices. 

Master  and  servant  generally:  See  post,  sees.  200ft 
et  seq. 

§  265.     Consent  of  parents.    Such  consent  shall  be  given: 

1.  By  the  fathey  of  the  minor.  If  he  be  dead,  or  be  not 
of  legal  capacity  to  give  his  consent,  or  if  he  shall  have 
abandoned  or  neglected  to  provide  for  his  family,  and 
such  fact  be  certified  by  a  justice  of  the  peace  of  the 
township  or  county,  or  sworn  to  by  a  credible  Witness,  and 
such  certificate  or  affidavit  be  indorsed  on  the  indenture; 
then, 

2.  By  the  mother.  If  the  mother,  be  dead,  or  be  not 
of  legal  capacity  to  give  such  consent  or  refusal;  then, 

3.  By  the  guardian  of  such  infant.  If  such  infant  have 
no  parent  living,  or  none  in  a  legal  capacity  to  give  con- 
sent, and  there  be  no  guardian;  then, 

4.  By  the  .supervisors  of  the  county,  or  any  two  jus- 
tices of  the  peace,  or  the  judge  of  the  superior  court  of 
the  county; 

5.  If  such  minor  be  an  orphan,  under  the  care  and  con- 
trol of  "any  orphan  asylum  in  this  state,  then  by  the  board 
of  managers  thereof.     En.  March  21,  1872.     Am'd.  1880,  5. 

§  266.  Written  consent.  Such  consent  shall  be  signified 
in  writing  by  the  person  entitled  to  give  the  same,  by 
certificate  at  the  end  of,  or  indorsed  upon  the  indentures. 
En.  March  21,  1872. 

§  267.  Executors  may  bind.  The  executors  of  any  last 
will  of  a  parent  who  shall  be  directed  in  such  will  to 
bring  up  his  or  her  child  to  some  trade  or  calling,  may 
bind  such  child  to  service  as  a  clerk,  or  apprentice,  in  like 
manner  as  the  father  might  have  done  if  living.  If  there 
is  a  surviving  mother,  her  consent  also  is  necessary.  En. 
March  21,  1872. 


75  MASTER    AND     SERVANT.  §§  2G8-274 

§  268.  Supervisors  may  bind  out.  The  supervisors  of 
the  county  may  bind  out  minors  who  are  or  shall  become 
chargeable  to  such  county,  to  be  clerks,  apprentices,  or 
servants,  which  binding  shall  be  as  effectual  as  if  such 
minors  had  bound  themselves  with  the  consent  of  their 
father.     En.  March  21,  1872. 

§  269.  Town  officers.  In  every  town  or  city,  the  pre- 
siding ofScer  of  the  first  council  or  legislative  board 
thereof,  if  there  be  more  than  one,  or  any  public  officer 
or  officers  appointed  to  provide  for  the  poor,  may  in  like 
manner  bind  out  any  child  who,  or  whose  parents  are, 
chargeable  to  any  such  town  or  city.    En.  March  21,  1872. 

§270.     Age  of  apprentice  to   be   inserted    in    indentures. 

The  age  of  every  infant  so  bound  shall  be  inserted  in 
the  indentures,  and  shall  be  taken  to  be  the  true  age; 
and  whenever  public  officers  are  authorized  to  execute 
any  indentures,  or  their  consent  is  required  to  the  validity 
of  the  same,  it  shall  be  their  duty  to  inform  themselves 
fully  of  the  infant's  age.     En.  March  21,  1872. 

§271.  Indentures,  conditions  in.  Every  sum  of  money 
paid  or  agreed  for,  with  or  in  relation  to  the  binding  out 
of  any  clerk,  apprentice,  or  servant  shall  be  inserted  in 
the  indentures.     En.  March  21,  1872, 

§  272.  Same.  The  indenture  shall  also  contain  an  agree- 
ment, on  the  part  of  the  person  to  whom  such  child  shall 
be  bound,  that  he  will  cause  such  child  to  be  instructed 
to  read  and  write,  and  to  be  taught  the  general  rules  of 
arithmetic,  or,  in  lieu  thereof,  that  he  will  send  such  child 
to  school  three  months  of  each  year  of  the  period  of 
indenture.     En.  March^21,  1872. 

§  273.     Deposit    of    indentures   with    county    clerk.     The 

counterpart  of  any  indenture  executed  by  any  county,  or 
city,  or  town  officers,  must  be  by  them  deposited  in  the 
office  of  the  county  clerk.  En.  March  21,  1872.  Am'd. 
1880,  6. 

§  274.  Alien  minors.  Any  minor,  capable  of  becoming  a 
citizen  of  this  state,  coming  from  any  other  country,  state. 


§§  275,  276  MASTER    AND     SERVANT.  76 

or  territory,  may  bind  himself  to  service  until  his  ma- 
jority, or  for  any  shorter  term.  Such  contract,  if  made 
for  the  purpose  of  raising  money  to  pay  his  passage,  or  for 
the  payment  of  such  passage,  may  be  for  the  term  of  one 
year,  although  such  term  may  extend  beyond  the  time 
when  such  person  will  be  of  full  age,  but  it  shall  in  no 
case  be  for  a  longer  term.    En.  March  21,  1872. 

§  275.  Contract  under  preceding  section  to  be  acknowl- 
edged. No  contract  made  under  the  preceding  section 
shall  bind  the  servant,  unless  duly  acknowledged  by  the 
minor,  before  some  public  magistrate  or  other  officer 
authorized  to  administer  oaths,  nor  unless  a  certificate, 
showing  that  the  same  was  made  freely,  on  private  exam- 
ination, be  indorsed  upon  the  contract.    En.  March  21,  1872. 

§  276.  Causes  for  annulling  indentures.  Such  indentures 
of  apprenticeship  may  be  annulled  for: 

1.  Fraud  in  the  contract  of  indenture; 

2.  When  such  contract  is  not  made  or  executed  in 
accordance  with  the  provisions  of  this  title; 

3.  For  willful  nonfulfillment,  by  such  master,  of  the 
provisions  of  such  indenture; 

4.  Cruelty  or  maltreatment  of  such  apprentice  by  the 
master.  In  such  case,  the  apprentice  may  recover  for  his 
services.    En.  March  21,  1872. 


PAKT   IV. 


CORPORATIONS. 

Title  I.     General    Provisions    Applicable    to    all    Corpora- 
tions, §§  283-403. 
II.     Insurance  Corporations,  §§  414-452. 

III.  Railroad  Corporations,   §§  454-494. 

IV.  Street  Railroad  Corporations,  §§  497-511. 
V.     Wagon  Road  Corporations,  §§  512-523. 

VI.    Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corpora- 
tions, §§  528-531. 
VII.     Telegraph  Corporations,  §§536-541. 
VIII.     Water  and  Canal  Corporations,  §§  548-552. 
IX.     Homestead  Corporations,   §§  557-566. 
X.     Savings  and  Loan  Corporations,  §§  571-583a. 
XI.     Mining  Corporations,  §§  584-587. 
XII.     Religious,    Social,    and   Benevolent   Corporations, 
§§  593-605. 

XIII.  Cemetery  Corporations,  §§  608-616. 

XIV.  Agricultural  Fair  Corporations,  §§  620-622. 
XV.     Gas  Corporations,  §§  628-632. 

XVI.     Land  and  Building  Corporations,   §§  639-648%. 
XVII.     Colleges  and  Seminaries  of  Learning,   §§  649-651. 
XVIII.     Consolidation    of    Colleges    and    Institutions    of 
Higher  Education,  §§  652-653. 


•  TITLE    I. 

GENERAL    PROVISIONS    APPLICABLE    TO    ALL    COR- 
PORATIONS. 

Chapter  I.  Formation  of  Corporations,  §§  283-321a. 

II.  Corporate  Stock,  §§  322-349. 

III.  Corporate  Powers,  §§  35-1-393. 

IV.  Extension    and    Dissolution    of    Corporations, 

§§  39S-403. 


55  283,  284  FORMATION    OF    CORPORATIONS.  78 

CHAPTER    I. 

FORMATION    OF    CORPORATIONS. 

Article  I.     Corporations  Defined  and  how  Organized,  §§  283-300a. 

II.     By-laws,   Directors,  Elections,   and  Meetings,  §§  301-321a. 

ARTICLE    I. 
CORPORATIONS    DEFINED    AND    HOW    ORGANIZED. 

S  283.     Corporation  defined. 

§  284.     Kinds  of. 

§  285.     Private,  how  formed. 

I  286.     For  what  purpose  private  corporations  are  formed. 

I  287.     How  corporations   may   continue  their   existence   under  this 

code. 
§  288.     Existing  corporations  not  affected. 
§   289.      Name   of   instrument   creating   corporation. 
§  290.     Articles  of   incorporation,  what  to  contain. 
§  291.      Certain  corporations  to  state  further  facts   in  articles. 
§  292.     Five   corporators,  three  to   be  citizens  of  the  state,   to  sign 

articles  and  acknowledge  the  same. 
§  293.      Prerequisite    to    filing    articles.      Amounts    to    be    subscribed 

to  be  fixed. 
§   294.      Prerequisite  to  filing  articles  of  corporations  for  profit. 
§  295.     Oath  of  offlLcr  to  subscription  of  stock  and  payment  of  ten 

per  cent. 
5  296.     To    file    articles   with    county   clerk    and   secretary    of   state, 

and  receive  certificate.      Term  of  existence. 
§   297.      Copy  of  articles  prima  facie  evidence. 

§  298.     Who  are  members  and  who  stockholders  of  a  corporation. 
5  299.      Filing  articles  of   incorporation. 

§  300.      Banking  corporations  may  elect  to  have  capital  stock. 
I  300a.  Change  of  name ;  filing  copy  of  decree. 

§  283.  Corporation  defined.  A  corporation  is  a  creature 
of  the  law,  having  certain  powers  and  duties  of  a  natural 
person.  Being  created  by  the  law,  it  may  continue  for 
any  length  of  time  which  the  law  prescribes.  En.  March 
21,  1872. 

Cal.Rep.Cit.   51,  410  ;   117,  177. 

Powers  of  corporations:    See  post,  sees.  354  et  seq. 
Existence  of  corporations  limited  to  fifty  years:     Sees. 
290,  401,  post. 

§  284.  Kinds  of.  Corporations  are  either  public  or 
private.  Public  corporations  are  formed  or  organized  for 
the  government  of  a  portion  of  the  state;  all  other  corpora- 
tions are  private.    En.  March  21,  1872.    Am'd.  1873-4,  197. 

Cal.Rep.Cit.   51,  409;    117,  121;    134    i78. 


79  FORMATION    OF    CORPORATIONS.  §§  2S5-2S7 

§  285.  Private,  how  formed.  Private  corporations  may 
be  formed  by  the  voluntary  association  of  any  five  or  more 
persons  in  the  manner  prescribed  in  tliis  article.  A  ma- 
jority of  such  persons  must  be  residents  of  this  state.  En- 
March  21,  1872.     Am'd.  1873-4,  197. 

Cal.Rep.Cit.  12S,  260. 

See  stats.  185S,  p.  264,  sec.  2;  id.  57;  1850,  347;  1851,  523; 
1861,  567,  607;  1853,  87,  169;  1857,  75;  1859,  2S1;  1862,  199; 
1866,  743,  752;    1863,  624. 

Formation  of  corporation  to  be  under  general  laws: 
Const.  Cal.  1879,  art.-12,  sec.  1. 

§286.  For  what  purpose  private  corporations  are 
formed.  Private  corporations  may  be  formed  for  any  pur- 
pose for  which  individuals  may  lawfully  associate  them- 
selves.    En.  March  21,  1872.     Am'd.  1873-4,  198. 

Cal.Rep.Cit.   52,  60;   53,  279;   109,  590;   113,  531. 

Corporations  to  give  bonds  required  by  law:  See  post, 
Appendix,  title  Bonds. 

Act  for  formation  of  chambers  of  commerce,  boards  of 
trade,  mechanics'  institutes  and  other  kindred  protective 
associations:  See  post,  Appendix,  title  Chambers  of  Com- 
merce. 

Co-operative  associations:  See  post,  Appendix,  title  Co- 
operative Associations. 

§  287.  How  corporations  may  continue  their  existence 
under  this  code.  Any  corporation  existing  on  the  first  day 
of  January,  one  thousand  eight  hundred  and  seventy-three, 
formed  under  the  laws  of  this  state,  and  still  existing, 
which  has  not  already  elected  to  continue  its  existence,  un- 
der the  provisions  of  this  code  applicable  thereto,  may,  at 
any  time  hereafter,  make  such  election  by  the  unanimous 
vote  of  all  its  directors,  or  such  election  may  be  made  at 
any  annual  meeting  of  the  stockholders,  or  members,  or  at 
any  meeting  called  by  the  directors  expressly  for  consider- 
ing the  subject,  if  voted  by  stockholders  representing  a 
majority  of  the  capital  stock,  or  by  a  majority  of  the  mem- 
bers, or  may  be  made  by  the  directors  upon  the  written 
consent  of  that  number  of  such  stockholders  or  members. 
A  certificate  of  the  action  of  the  directors,  signed  by  them 
and  their  secretary,  when  the  election  is  made  by  their 
unanimous  vote,  or  upon  the  written  consent  of  the  stock- 


5S  2S8-290  FORMATION    OF    CORPORATIONS.  *iO 

holders  or  members,  or  a  certificate  of  the  proceedings  of 
the  meeting  of  the  stockholders  or  members,  when  such 
election  is  made  at  any  such  meeting,  signed  1)y  the  chair- 
man and  secretary  of  the  meeting,  and  »  majority  of  the 
directors,  must  be  filed  in  the  office  of  Ihe  clerk  of  the 
county  where  the  original  articles  of  corporation  are  filed, 
and  a  certified  copy  thereof  must  be  filed  in  the  office  of 
the  secretary  of  state;  and  thereafter  the  corporation 
shall  continue  its  existence  under  the  provisions  of  this 
code  which  are  applicable  thereto,  and  shall  possess  all  the 
rights  and  powers,  and  be  subject  to  all  the  obligations, 
restrictions,  and  limitations  prescribed  thereby.  Eu.  March 
21,  1872.     Am'd.  1873-4,  198. 

Cal.Rep.Cit.  57,  533;  105,  552;  109,  579;  109,  586;  111,  65; 
119,  342;   122,  336;  "122,  337;   122,  339. 

§  288.  Existing  corporations  not  affected.  No  corpora- 
tion formed  or  existing  before  twelve  o'clock  noon,  of  the 
day  upon  which  this  code  takes  effect,  is  affected  by  the 
provisions  of  part  IV,  of  division  first  of  this  code,  unless 
such  corporation  elects  to  continue  its  existence  under  it 
as  provided  in  section  287;  but  the  laws  under  which  such, 
corporations  were  formed  and  exist  are  applicable  to  all 
such  corporations,  and  are  repealed,  subject  to  the  pro- 
visions of  this  section.    En.  March  21,  1872. 

Cal.Rep.Cit.  52,  141;  60,  310;  105,  550;  105,  552;  105,  553; 
109,  579;  109,  580;  109,  581;  109,  582;  109,  583;  111,  65; 
119,  341;    119,  342;    122,  337. 

§289.     Name    of    instrument    creating    corporation.     The 

instrument  by  which  a  private  corporation  is  formed  is 
called  "Articles  of  Incorporation."    En.  March  21,  1872. 
Cal.Rep.Cit.  128,  260. 

§  290.  Articles  of  incorporation,  what  to  contain.  Ar- 
ticles of  incorporation  must  be  prepared,  setting  forth: 

1.  The  name  of  the  incorporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  is  to  be  trans- 
acted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  its  directors  or  trustees,  which  shall 
not  be  less  than  five,  and  the  names  and  residence  of  those 


81  FORMATION     OP     CORPORATIONS.  §  290 

who  are  appointed  for  the  first  year;  provided,  that  the 
corporate  powers,  business,  and  property  of  corporations 
formed  or  to  be  formed  for  the  purpose  of  erecting  and 
managing  halls  and  buildings  for  the  meetings  and  accom- 
modation of  several  lodges  or  societies  of  any  benevolent 
or  charitable  order  or  organization,  and  in  connection 
therewith  the  leasing  of  stores  and  offices  in  such  building 
or  buildings  for  other  purposes,  may  be  conducted,  exer- 
cised, and  controlled  by  a  board  of  not  less  -than  five  or 
more  than  fifty  directors,  to  be  chosen  from  among  the 
stockholders  of  such  corporation,  or  from  among  the  mem- 
bers of  such  order  or  organization;  and  provided,  also, 
that  at  any  time  during  the  existence  of  corporations  for 
profit,  other  than  those  of  the  character  last  hereinabove 
provided  for,  the  number  of  the  directors  may  be  increased 
or  diminished,  by  a  majority  of  the  stockholders  of  the 
corporation,  to  any  number  not  less  than  five,  who  must 
be  members  of  the  corporation;  whereupon,  a  certificate 
stating  the  number  of  directors  must  be  filed,  as  provided 
tor  in  section  two  hundred  and  ninety-six  for  the  filing  of 
the  original  articles  of  incorporation;  and  provided,  also, 
that  the  corporate  powers,  business,  and  property  of  cor- 
porations formed  or  to  be  formed  for  social  purposes,  and 
not  directly  for  profit,  may  be  exercised,  conducted,  and 
controlled  by  a  board,  consisting  of  such  number  of  di- 
rectors as  may  be  in  the  constitution  or  by-laws  provided; 
and  corporations  so  formed  may,  in  their  constitution  or 
by-laws,  provide  for  the  length  of  time  that  the  directors, 
or  any  number  thereof,  shall  act,  and  may,  in  like  manner, 
provide  that  certain  directors,  or  a  certain  number  of  the 
board  of  directors',  to  be  selected  by  the  corporation  or  the 
board  of  directors,  in  the  mode  and  manner  provided  in  the 
constitution  or  by-laws,  shall  act  for  any  specified  length  of 
time,  or  otherwise,  as  shall  be  in  the  constitution  or  by- 
laws set  forth. 

6.  The  amount  of  its  capital  stock,  and  the  number  of 
shares  into  which  it  is  divided. 

7.  If  there  is  a  capital  stock,  the  amount  actually  sub- 
scribed, and  by  whom.  En.  March  21,  1872.  Am'd.  1873-4. 
199;  1875-6,  70;  1880,  11;  1891,  285;  1900-01,  322. 

Cal.Rep.Cit.  53,  128;  64,  52;  65,  601;  89,  54;  102,  64; 
106,  309;  127,  267;  127,  268;  127,  269;  128,  261;  128,  262; 
130,     39.       Subd.    7—106.  309. 


§5  291-294  FORMATION    OF    CORPORATIONS.  82 

Requisites,   particular   kinds   of   corporation:     See   post, 
sees.  291,  594. 
Limit  of  corporate  existence:     See  sec.  354. 

§  291.  Certain  corporations  to  state  further  facts  in  ar- 
ticles. The  articles  of  incorporation  of  any  railroad, 
wagon  road,  or  telegraph  organization  must  also  state: 

1.  The  kind  of  road  or  telegraph  intended  to  be  con- 
structed; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run, 
and  all  the  intermediate  branches; 

3.  The  estimated  length  of  the  road  or  telegraph  line; 

4.  That  at  least  ten  per  cent,  of  the  capital  stock  sub- 
scribed has  been  paid  in  to  the  treasurer  of  the  intended 
corporation.     En.  March  21,  1872. 

§292.  Five  corporators,  three  to  be  citizens  of  the  state, 
to  sign  articles  and  acknowledge  the  same.  The  articles 
of  incorporation  must  be  subscribed  by  five  or  more  per- 
sons, a  majority  of  whom  must  be  residents  of  this  state, 
and  acknowledged  by  each  before  some  officer  authorized 
to  take  and  certify  acknowledgments  of  conveyances  of 
real  property.     En.  March  21,  1872.     Am'd.  1873-4,  199. 

Cal.Rep.Cit.      80,  353;      97,  278;      97,  280;   128,  260;    128,  261; 
128,  263;    130,     39. 

§293.  Prerequisite  to  filing  articles.  Amounts  to  be 
subscribed  to  be  fixed.  Each  intended  corporation  named 
in  section  291,  before  filing  articles  of  incorporation,  must 
have  actually  subscribed  to  its  capital  stock,  for  each  mile 
of  the  contemplated  work,  the  following  amounts,  to-wit: 

1.  One  thousand  dollars  per  mile  of  railroads; 

2.  One  hundred  dollars   per  mile  of  telegraph   lines; 

3.  Three  hundred  dollars  per  mile  of  wagon  roads.  En. 
March  21,  1872. 

Cal.Rep.Cit.  53,  128. 

§294.  Prerequisite  to  filing  articles  of  corporations  for 
profit.  Before  the  articles  of  incorporation  of  any  corpora- 
tion referred  to  in  the  preceding  section  are  filed,  there 
must  be  paid  for  the  benefit  of  the  corporation,  to  a  treas- 
urer elected  by  the  subscribers,  ten  per  cent,  of  the  amount 
subscribed.     En.  March  21,  1872. 


83  FORMATION     OF     CUUrUKATlONS.  §§  295-297 

§  295.  Oath  of  officer  to  subscription  of  stock  and  pay- 
ment of  ten  per  cent.  Before  the  secretary  of  state  issues 
to  any  such  corporation  a  certificate  of  the  filing  of  articles 
of  incorporation,  there  must  be  filed  in  his  oflace  an  affida- 
vit of  the  president,  secretary,  or  treasurer  named  in  the 
articles,  that  the  required  amount  of  the  capital  stock 
thereof  has  been  actually  subscribed,  and  ten  per  cent 
thereof  actually  paid  to  a  treasurer  tor  the  benefit  of  the 
corporation.     En.  March  21,  1872. 

Signing  fictitious  name:      Pen.  Code,  sec.  557. 

§296.  To  file  articles  with  county  clerk  and  secretary 
of  state,  and  receive  certificate.  Term  of  existence.  Upon 
filing  the  articles  of  incorporation  in  the  office  of  the 
county  clerk  of  the  county  in  which  the  principal  business 
of  the  company  is  to  be  transacted,  and  a  copy  thereof 
certified  by  the  county  clerk  with  the  secretary  of  state, 
and  the  affidavit  mentioned  in  the  last  section  where  such 
affidavit  is  required,  the  secretary  of  state  must  issue  to 
the  corporation,  over  the  great  seal  of  the  state,  a  certifi- 
cate that  a  copy  of  the  articles  containing  the  required 
statement  of  facts  has  been  filed  in  his  office,  and  there- 
upon the  persons  signing  the  articles  and  their  associates 
and  successors  shall  be  a  body  politic  and  corporate  by 
the  name  stated  in  the  certificate,  and  tor  the  term  of  fifty 
years,  unless  it  is,  in  the  articles  of  incorporation,  other- 
wise stated,  or  in  this  code  otherwise  specially  provided; 
provided,  however,  that  the  secretary  of  state  shall  not 
tile  any  copy  of  the  copy  of  any  articles,  or  issue  any  cer- 
tificate of  incorporation  to  any  corporation,  which  articles 
set  forth  the  corporate  name  of  any  corporation  heretofore 
organized  in  this  state,  or  file  any  copy  of  any  articles,  or 
issue  any  certificate  of  incorpoi-ation  to  any  corporation  ex- 
isting at  the  time  of  filing  said  articles,  which  articles  set 
forth  a  name  so  closely  resembling  the  name  of  such  cor- 
poration as  will  tend  to  deceive.  En.  March  21,  1872. 
Am'd.  1873-4,  199;  1900-01,  629. 

Cal.Rep.Cit.     72,382;     93,     39;   102,     62;   111,135;   128,262; 
130,     38. 

§  297.  Copy  of  articles  prima  facie  evidence.  A  copy  of 
any  articles  of  incorporation  filed  in  pursuance  of  this 
chapter,  and  certified  by  the  secretary  of  state,  or  by  the 


8§  29S,  299  FORMATION     OF     CORPORATIONS.  84 

county  clerk  of  the  coxmty  where  the  original  articles  shall 
have  been  filed,  must  be  received  in  all  the  courts  of  this 
state,  and  other  places,  as  prima  facie  evidence  of  the  facts 
therein  stated.  En.  March  21,  1872.  Am'd.  1873-4,  200; 
1895,  30. 

Cal.Rep.Cit.   67,  488;   72,  382. 

§298.  Who  are  members  and  who  stockholders  of  a 
corporation.  The  owners  of  shares  in  a  corporation  which 
has  a  capital  stock  are  called  stockholders.  If  a  corpora- 
tion has  no  capital  stock,  the  corporators  and  their  suc- 
cessors are  called  members.     En.  March  21,  1872. 

Cal.Rep.Cit.   109,  588;   115.  593. 

§299.  Filing  articles  of  incorporation.  No  corporktion 
hereafter  formed  shall  purchase,  locate,  or  hold  property 
in  any  county  in  this  state,  without  filing  a  copy  of  the 
copy  of  its  articles  of  incorporation  filed  in  the  office  of 
the  secretary  of  state,  duly  certified  by  such  secretary  of 
state,  in  the  office  of  the  county  clerk  of  the  county  in 
which  such  property  is  situated,  within  sixty  days  after 
such  purchase  or  location  is  made.  Every  corporation  now 
in  existence,  whether  formed  under  the  provisions  of  this 
code  or  not,  must,  within  ninety  days  after  the  passage 
of  this  section,  file  such  certified  copy  of  the  copy  of  its 
articles  of  incorporation  in  the  office  of  the  county  clerk 
of  every  county  in  this  state  in  which  it  holds  any  prop- 
erty (except  the  county  where  the  original  articles  of  in- 
corporation are  filed);  and  if  any  corporation  hereafter 
acquire  any  property  in  any  county  other  than  that  in 
which  it  now  holds  property,  it  must,  within  ninety  days 
thereafter,  file  with  the  clerk  of  such  county  such  certified 
copy  of  the  copy  of  its  articles  of  incorporation.  The 
copies  so  filed  with  the  several  county  clerks  and  certified 
copies  thereof  shall  have  the  same  force  and  effect  in  evi- 
dence as  would  the  originals.  Any  corporation  failing  to 
comply  with  the  provisions  of  this  section  shall  not  main- 
tain or  defend  any  action  or  proceeding  in  relation  to  such 
property,  its  rents,  issues,  or  profits,  until  such  articles 
of  incorporation,  and  such  certified  copy  of  its  articles  of 
incorporation,  and  such  certified  copy  of  the  copy  of  its 
articles  of  incorporation  shall   be  filed   at  the  places   di- 


85  FORMATION    OP    CORPORATIONS.  §300 

rected  by  the  general  law  and  this  section;  provided,  that 

all  corporations  shall  be  liable  in  damages  for  any  and 

all  loss  that  may  arise  by  the  failure  of  such  corporation 

to  perform   any  of  the  foregoing  duties   within  the  time 

mentioned  in  this  section;   and  provided  further,  that  the 

said  damages  may  be  recovered  in  an  action  brought  in 

any  court  of  this  state  of  competent  jurisdiction,  by  any 

party  or  parties  suffering  the  same.     En.  March  21,  1872. 

Rep.  1873-4,  200.     En.  Stats.  1875-6,  71.     Am'd.  1877-8,  76; 

1880,  13. 

Cal.Rep.Cit.     67,487;     73,601;     73,602;  77,     72;  80,     69; 

SO,     '.1;      80,335;      80,336;      83,     IV;  97,274;  luS,     90; 

lOS,     91;   111  ,135;   111,  137;   111,  13S  ;  120,  178;  120.  179; 
120,  180;   120,  181. 

Right  to  purchase  estate:     See  post,  sec.  354. 

§300.  Banking  corporations  may  elect  to  Iiave  capital 
stock.  Every  corporation  that  has  been  or  may  be  created 
under  the  general  laws  of  this  state,  doing  a  banking 
business  therein,  and  which  has  no  capital  stock,  may  elect 
to  have  a  capital  stock,  and  may  issue  certificates  of  stock 
therefor  in  the  same  manner  as  corporations  formed  under 
the  provisions  of  chapter  I,  article  I,  of  the  Civil  Code, 
relating  to  the  formation  of  corporations:  provided,  that 
no  such  corporation  shall  use  or  convert  any  moneys 
or  funds  theretofore  belonging  to  it  or  under  its  control  into 
capital  stock;  but  such  funds  or  moneys  must  be  held  and 
managed  only  for  the  purposes  and  in  the  manner  for 
which  they  were  created.  Before  such  change  is  made, 
a  majority  of  the  members  of  such  corporation  present 
at  a  meeting  called  for  the  purpose  of  considering  the 
proposition  whether  it  is  best  to  have  a  capital  stock,  its 
amount,  and  the  number  of  shares  into  which  it  shall  be 
divided,  must  vote  in  favor  of  having  a  capital  stock,  fix 
the  amount  thereof,  and  the  number  of  shares  into  which 
it  shall  be  divided.  Notice  of  the  time  and  place  of  hold- 
ing such  meeting  and  its  object  must  be  given  by  the 
president  of  such  corporation  by  publication  in  some  news- 
paper printed  and  published  in  the  county,  or  city  and 
county,  in  which  the  principal  place  of  business  of  the 
corporation  is  situated,  at  least  once  a  week  for  three 
successive  weeks  prior  to  the  holding  of  the  meeting. 
A  copy  of  the  proceedings  of  this  meeting,  giving  the 
number   of   persons   present,   the   votes   taken,   the   notice 


§  300a  FORMATION    OF    CORPORATIONS.  86 

calling  the  meeting,  the  proof  of  its  publication,  the  amount 
of  capital  actually  subscribed,  and  by  whom,  ail  duly  certi- 
fied by  the  president  and  secretary  of  the  corporation, 
must  be  filed  in  the  oflices  of  the  secretary  of  state  and 
clerk  of  the  county  where  the  articles  of  incorporation  are 
filed.  Thereafter  such  corporation  is  possessed  of  all  the 
rights  and  powers,  and  is  subject  to  all  the  obligations, 
restrictions,  and  limitations,  as  if  it  had  been  originally 
created  with  a  capital  stock;  and  provided,  further,  that 
no  bank  in  this  state  shall  ever  pay  any  dividend,  upon 
so-called  guaranty  notes  nor  upon  any  stock  except  upon 
the  amount  actually  paid  in  money  into  said  capital 
upon  such  stock,  and  any  payment  made  in  violation  of 
this  provision  shall  render  all  officers  and  directors  con- 
senting to  the  same  jointly  and  severally  liable  to  the 
depositors,  to  the  extent  thereof.     En.  Stats.  1877-8,  77. 

Cal.Rep.Cit.   56,  349;   74,  600;   74,  602. 

§  300a.  Change  of  name;  filing  copy  of  decree.  Every 
corporation  which  has  changed  its  name  under  the  pro- 
visions of  sections  1275,  1276,  1277,  1278  and  1279,  of  the 
Code  of  Civil  Procedure,  must  file  in  the  office  of  the  secre- 
tary of  state  a  certified  copy  of  the  decree  of  the  court, 
changing  such  name.    En.  Stats.  1903,  256. 


87,  FORMATION    OF    CORPORATIONS.  §301 

ARTICLE    II. 
BY-LAWS,    DIRECTORS,    ELECTIONS,    AND    MEETINGS. 

§  301.     Adoption  of  by-laws,  when,  how,  and  by  whom. 

§  302.     Directors,  election  of,  etc. 

§  303.      By-laws  may  provide  lor  what. 

I  304.  By-laws  to  be  copied  and  open  to  public  inspection.  Amend- 
ment of. 

§  305.     Powers  of  directors  of  corporations. 

§  306.  Directors  must  be  elected  and  by-laws  adopted  at  first  meet- 
ing.     (Repealed.) 

§  307.      Elections,  how  conducted. 

§   308.      Organization  of  board  of  directors,   etc. 

S  ciu9.  Dividends  to  be  made  from  surplus  profits.  Increase  and 
reduction  of  capital  stock. 

§  310.     Removal  from  oihce  of  directors,   etc. 

§  811.      Justice  of  the  peace  may  order  meeting  when. 

§  312.      Majority  of  stock  must  be  represented. 

§  313.      Stock,  how  represented. 

§  314.      Election  may  be  postponed.  t 

§   315.      Complaints  and   proceedings   regarding  elections. 

§  316.     False  certificate,  report,  or  notice  to  make  officers  liable. 

§   317.      Meeting  by  consent  to  be  valid. 

§  318.     Proceedings  at  meeting  to  be  binding. 

§   319.      Meetings,  where  held. 

§  320.      Special  meetings,  how  called. 

§  321.      Certain  books  to  be  open  for  inspection. 

§  321a.  Corporation  may  change  its  principal  place  of  business. 

§  301.  Adoption  of  by-laws,  when,  how,  and  by  whom. 
Every  corporation  formed  under  this  title  must,  within 
one  month  after  filing  articles  of  incorporation,  adopt  a 
code  of  by-laws  for  its  government  not  inconsistent  with 
the  constitution  and  laws  of  this  state.  The  assent  of 
stockholders  representing  a  majority  of  all  the  subscribed 
capital  stock,  or  of  a  majority  of  the  members,  if  there 
be  no  capital  stock,  is  necessary  to  adopt  by-laws,  if  they 
are  adopted  at  a  meeting  called  for  that  purpose;  and  in 
the  event  of  such  meeting  being  called,  two  weeks'  notice 
of  the  same  by  advertisement  in  some  newspaper  pub- 
lished in  the  coimty  in  which  the  principal  place  of  busi- 
ness of  the  corporation  is  located,  or  if  none  is  published 
therein,  then  in  a  paper  published  in  an  adjoining  county, 
must  be  given  by  order  of  the  acting  president.  The  writ- 
ten assent  of  the  holders  of  two  thirds  of  the  stock,  or  of 
two  thirds  of  the  members,  if  there  be  no  capital  stock, 
shall  be  effectual  to  adopt  a  code  of  by-laws  without  a 
meeting  for  that  purpose.  En.  March  21,  1872.  Am'd. 
1873-4,  200. 

Cal.Rep.Cit.   74,  574;   109,  588;   116,  414;   116,  415:   117,  162. 

Repeal  and  amendment  of  by-laws:     Post,  sec.  304. 


§§  302,  303  FORMATION    OF    CORPORATIONS.  88 

§  302.  Directors,  election  of,  etc.  The  directors  of  a 
corporation  must  bo  elected  annually  by  the  stockholders 
or  members,  and  if  no  provision  is  made  in  the  by-laws 
for  the  time  of  election,  the  election  must  be  held  on  the 
first  Tuesday  in  June.  Notice  of  such  election  must  be 
given,  and  the  right  to  vote  determined  as  prescibed  in 
section  301.    En.  March  21,  1872. 

Cal.Rep.Cit.  93,   36. 

Postponing  election:     Post,  sec.  314. 

§  303.  By-laws  may  provide  for  what.  A  corporation 
may,  by  its  by-laws,  where  no  other  provision  is  specially 
made,  provide  for: 

1.  The  time,  place,  and  manner  of  calling  and  conduct- 
ing its'  meetings,  and  may  dispense  with  notice  of  all 
regular  meetings  of  stockholders  or  directors. 

2.  The  number  of  stockholders  or  members  constituting 
a  quorum. 

3.  The  mode  of  voting  by  proxy. 

4.  The  qualifications  and  duties  of  directors,  and  also 
the  time  of  their  annual  election,  and  the  mode  and  man- 
ner of  giving  notice  thereof. 

5.  The  compensation  and  duties  of  officers. 

6.  The  manner  of  election  .and  tenure  of  office  of  all 
officers  other  than  the  directors;  and 

7.  Suitable  penalties  for  violations  of  by-laws,  mt  ex- 
ceeding, in  any  case,  one  hundred  dollars  for  an;-  one 
offense. 

8.  The  newspaper  in  which  all  notices  of  the  meetings 
of  stockholders  or  board  of  directors,  notice  of  which  is 
required,  shall  be  published,  which  must  be  some  news- 
paper published  in  the  'County  where  the  principal  place 
of  business  of  the  corporation  is  located,  or  if  rone  is 
published  therein,  then  in  a  newspaper  published  in  an 
adjoining  county;  provided,  that  when  the  by-laws  pre- 
scribe the  newspaper  in  which  said  publication  shall  be 
made,  if  from  any  cause,  at  the  time  any  publication  is 
desired  to  be  made,  the  publication  of  such  newspaper 
shall  have  ceased,  the  board  of  directors  may,  by  an 
order  entered  on  the  records  of  the  corporation,  direct  the 
publication  to  be  made  in  some  other  newspaper  publisLied 


89  FORMATION    OF    CORPORATIONS.  §§  304,  305 

in  the  county,  or  if  none  is  published  therein,  then  in  an 

adjoining  county.     En.  March  21,  1872.     Am'd.  1873-4,  201; 

18S9,  3C5. 

Cal.Rep.Cit.      93,     38;      93,     39;      96,     82;   104,  653;   109,599. 
Subd.   1—130,  347.       Subd.   4—121,  208.       Subd.   5—121,  2uS, 

By-laws  of;     Post,  sees.  305,  308,  323,  344,  599. 

§304.  By-laws  to  be  copied  and  open  to  public  inspec- 
tion. Amendment  cf.  All  by-laws  adopted  must  be  certi- 
fied by  a  majority  of  the  directors  and  secretary  of  the 
corporation,  and  copied  in  a  legible  hand,  in  some  book 
kept  in  the  oifice  of  the  corporation,  to  be  known  as  the 
"Book  of  By-Laws,"  and  no  by-law  shall  take  effect  until 
so  copied,  and  the  book  shall  then  be  opened  to  the  in- 
spection of  the  public  during  office  hours  of  each  day  ex- 
cept holidays.  The  by-laws  may  be  repealed  or  amended, 
or  new  by-laws  may  be  adopted,  at  the  annual  meeting, 
or  at  any  other  meeting  of  the  stockholders  or  members, 
called  for  that  purpose  by  the  directors,  by  a  vote  repre- 
senting two  thirds  of  the  subscribed  stock,  or  by  two  thirds 
of  the  members.  The  written  assent  of  the  holders  of  two 
thirds  of  the  stock,  or  two  thirds  of  the  members  li  there 
be  no  capital  stock,  shall  be  effectual  to  repeal  or  amend 
any  by-law,  or  to  adopt  additional  by-laws.  The  power 
to  repeal  and  amend  the  by-laws,  and  adopt  new  by-laws, 
may,  by  a  similar  vote  at  any  such  meeting,  or  similar 
written  assent,  be  delegated  to  the  board  of  directors. 
The  power,  when  delegated,  may  be  revoked  by  a  similar 
vote,  at  any  regular  meeting  of  the  stockholders  or  mem- 
bers. Whenever  any  amendment  or  new  by-law  is  adopted, 
it  shall  be  copied  in  the  book  of  by-laws  with  the  original 
by-laws,  and  immediately  after  them,  and  shall  not  take 
effect  until  so  copied.  If  any  by-law  be  repealed,  the  fact 
of  repeal,  with  the  date  of  the  meeting  at  which  the  repeal 
was  enacted,  or  written  assent  was  filed,  shall  be  stated 
in  said  book,  and  until  so  stated  the  repeal  shall  not  take 
effect.     En.  March  21,  1872.     Am'd.  1873-4,  201;  1885,  130. 

Cal.Rep.Cit.   89,   54. 

§  305.  Powers  of  directors  of  corporations.  The  cor- 
porate powers,  business,  and  property  of  all  corporations 
formed  under  this  title  must  be  exercised,  conducted, 
and  controlled  by  a  board  of  not  less  than  five  directors, 


§§  306,  307  FORMATION    OF    CORPORATIONS.  90 

to  be  elected  from  among  the  holders  of  stock;  or  where 
there  is  no  capital  stock,  then  from  the  members  of  such 
corporations;  except  that  corporations  formed  or  to  be 
formed  for  the  purpose  of  erecting  and  managing  halls 
and  buildings  for  the  meetings  and  accommodation  of  sev- 
eral lodges  or  societies  of  any  benevolent  or  charitable 
order  or  organization,  and  in  connection  therewith  the 
leasing  of  stores  and  oflBces  in  such  building  or  buildings 
for  other  purposes,  the  corporate  powers,  business,  and 
property  thereof  may  be  conducted,  exercised,  and  con- 
trolled by  a  board  of  not  less  than  five  or  more  than  fifty 
directors,  to  be  chosen  fi'om  among  the  stockholders  of 
such  corporation  or  from  among  the  members  of  such 
order  or  organization.  A  majority  of  the  directors  must 
be  in  all  cases  citizens  of  this  state.  Directors  of  corpora- 
tions for  profit  must  be  holders  of  stock  therein  to  an 
amount  to  be  fixed  by  the  by-laws  of  the  corporation.  Di- 
rectors of  all  other  corporations  must  be  members  thereof. 
Unless  a  quorum  is  present  and  acting  no  business  per- 
formed or  act  done  is  valid  as  against  the  corporation. 
Whenever  a  vacancy  occurs  in  the  olfice  of  director,  unless 
the  by-laws  of  the  corporation  otherwise  provide,  such 
vacancy  must  be  filled  by  an  appointee  of  the  board.  En. 
March  21,  1872.     Am'd.  1875-6,  71;  1900-01,  308. 

Cal.Rep.Cit.  78,  632;  81,  234;  93,  36;  93,  39;  94,  549; 
111,  116;  118.  138;  121,  208;  126,  417;  127,  267;  127,  269; 
130,  349;   130,  351;   132,  652. 

§  306.  Directors  must  be  elected  and  by-laws  adopted 
at  first  meeting.  (Repealed.)  En.  March  21,  1872.  Am'd. 
1873-4,  202.     Rep.  1889,  365. 

§  307.  Elections,  hov7  conducted.  All  elections  must  be 
by  ballot,  and  every  stockholder  shall  have  the  right  to 
vote  in  person  or  by  proxy  the  number  cf  shares  standing 
in  his  name,  as  provided  in  section  three  hundred  and 
twelve  of  this  code,  for  as  many  persons  as  there  are 
directors  to  be  elected,  or  to  cumulate  said  shares  and 
give  one  candidate  as  many  votes  as  the  number  of  di- 
rectors multiplied  by  the  number  of  his  shares  of  stock 
shall  equal,  or  to  distribute  them  on  the  same  principle 
among  as  many  candidates  as  he  shall  think  fit. 

The  provisions  of  this  section,   so  far  as  it  relates  to 


91  FORMATION    OF    CORPORATIONS.  §§  308,  309 

cumulative  voting,  shall  apply  to  all  corporations  and 
associations  doing  business  in  this  state,  having  a  capital 
stock  or  shares  of  stock,  and  electing  directors  by  a 'meet- 
ing of  stockholders  held  in  this  state,  whether  such  cor- 
porations or  associations  are  organized  under  the  laws  of 
this  state  or  not  and  no  election  for  directors  of  any  cor- 
poration or  association,  doing  business  in  this  state,  and 
electing  directors  in  this  state,  shall  be  valid,  if  the  right 
of  a  stockholder  to  cumulate  his  shares  as  herein  provided 
shall  be  denied. 

In  corporations  having  no  capital  stock,  each  member 
of  the  corporation  may  cast  as  many  votes  for  one  director 
as  there  are  directors  to  be  elected,  or  may  distribute  the 
same  among  any  or  all  the  candidates. 

In  any  case  the  director  receiving  the  highest  number 
of  votes  shall  be  declared  elected. 

The  provisions  of  this  section,  so  far  as  it  relates  to 
cumulative  voting,  shall  not  apply  to  literary,  religious, 
scientific,  social  or  benevolent  societies,  having  no  capital 
stock  or  shares  unless  it  shall  be  so  provided  in  their  by- 
laws or  rules.  En.  March  21,  1872.  Am'd.  1873-4,  202;  1S77-8, 
78;    1887,  95;    1903,  253. 

Cal.Rep.Cit.     93,     36;   103,  363;   109,  589;   109,  597;   115,  590; 
115,  609;    127,  683. 

§  308.  Organization  of  board  of  directors,  etc.  Imme- 
diately after  their  election,  the  directors  must  organize 
by  the  election  of  a  president,  who  must  be  one  of  their 
number,  a  secretary,  and  treasurer.  They  must  perform 
the  duties  enjoined  on  them  by  law  and  the  by-laws  of  the 
corporation.  A  majority  of  the  directors  is  a  sufficient 
number  to  form  a  board  for  the  transaction  of  business, 
and  every  decision  of  a  majority  of  the  directors  forming 
such  board,  made  when  duly  assembled,  is  valid  as  a 
corporate  act.     En.  March  21,  1872. 

Cal.Rep.Cit.     78,  292;      78,  632;     93,     38;     93,     39;     94,  549; 
96,     82;   103,  363;   121,  308;   127,  267;  130,  348;   130,  349; 
131,  659. 

§  309.  Dividends  to  be  made  from  surplus  profits.  In- 
crease and  reduction  of  capital  stock.  The  directors  of 
corporations  must  not  make  dividends,  except  from  the 
surplus  profits  arising  from  the  business  thereof;  nor 
must  they  divide,  withdraw,  or  pay  to  the  stockholders, 


8  309  FORMATION     OF    CORPORATIONS.  92 

or  any  of  them,  any  part  of  the  capital  stock;  nor  must 
they  freate  debts  beyond  their  subscribed  capital  stock; 
nor  must  they  divide,  withdraw,  or  pay  to  the  stockholders, 
or  any  of  them,  any  part  of  the  capital  stock,  except  as 
hereinafter  provided,  nor  reduce  or  increase  the  capital 
stock,  except  as  herein  specially  provided.  For  a  violation 
>of  the  provisions  of  this  section,  the  directors  under  whose 
administration  the  same  may  have  happened  (except  those 
who  may  have  caused  their  dissent  therefrom  to  be  entered 
at  large  on  the  minutes  of  the  directors  at  the  time,  or 
were  not  present  when  the  same  did  happen)  are,  in  their 
individual  and  private  capacity,  jointly  and  severally  liable 
to  the  corporation,  and  to  the  creditors  thereof,  in  the 
event  of  its  dissolution,  to  the  full  amount  of  the  capital 
stock  so  divided,  withdrawn,  paid  out,  or  reduced,  or  debt 
contracted;  and  no  statute  of  limitations  is  a  bar  to  any 
suit  against  such  directors  for  any  sums  for  which  they 
are  liable  by  this  section;  provided,  however,  that  where 
a  corporation  has  been  heretofore  or  may  hereafter  be 
formed  for  the  purpose,  among  other  things,  of  acquiring, 
holding,  and  selling  real  estate,  water,  and  water  rights, 
the  directors  of  such  corporation  may,  with  the  consent  of 
stockholders  representing  two  thirds  of  the  capital  stock 
tliereof,  given  at  a  meeting  called  for  that  purpose,  divide 
among  the  stockholders  the  land,  water,  or  water  rights 
so  by  such  corporation  held,  in  the  proportions  to  which 
their  holdings  of  such  stock  at  the  time  of  such  division 
would  entitle  them.  All  conveyances  made  by  the  corpora- 
tion in  pursuance  of  this  section  shall  be  made  and  re- 
ceived subject  to  the  debts  of  such  corporation  existing 
at  the  date  of  the  conveyance  thereof.  Nothing  herein 
shall  prohibit  a  division  and  distribution  of  the  capital 
stock  of  any  corporation  which  remains  after  the  pay- 
ment of  all  its  debts,  upon  its  dissolution,  or  the  expiration 
of  its  term  of  existence.  En.  March  21,  1872.  Am'd.  1891, 
468. 

Cal.Rep.Cit.      57,602;      81,384;      81,387;      81,389;      81,390 
81,396;      81,397;      90,135;      90,136;      9(5,139;      90,140 
90,  141;      90,  142;      93,  309;      93.  310;      93.  311;   109,  596 
116,  415;   124,  149;   125,  412;    127,  674;   135,  482. 

Increasing  and  diminishing  capital  stock:     See  post,  sec 
359. 

Penaltifes:     See  Pen.  Code,  sees.  560.  563,  564.  569,  570. 


93  FORMATION    OF    CORPORATIONS.  §§  310-312 

§  310.  Removal  from  office  of  directors,  etc.  No  di- 
rector shall  be  removed  from  office,  unless  by  a  vote  of 
two  thirds  of  the  members,  or  of  stockholders  holding  two 
thirds  of  the  capital  stock,  at  a  general  meeting  held  after 
previous  notice  of  the  time  and  place,  and  of  the  intention 
to  propose  such  removal.  Meetings  of  stockholders  for  this 
purpose  may  be  called  by  the  president,  or  by  a  majority 
of  the  directors,  or  by  members  or  stockholders  holding  at 
least  one  half  of  the  votes.  Such  calls  must  be  in  writing, 
and  addressed  to  the  secretary,  who  must  thereupon  give 
notice  of  the  time,  place,  and  object  of  the  meeting,  and  by 
whose  order  it  is  called.  If  the  secretary  refuse  to  give 
the  notice,  or  if  there  is  none,  the  call  may  be  addressed 
directly  to  the  members  or  stockholders,  and  be  served 
as  a  notice,  in  which  case  it  must  specify  the  time  and 
place  of  meeting.  The  notice  must  be  given  in  the  man- 
ner provided  in  section  301  of  this  title,  unless  other  ex- 
press provision  has  been  made  therefor  in  the  by-laws. 
In  case  of  removal,  the  vacancy  may  be  filled  by  election 
at  the  same  meeting.     En.  March  21,  1872. 

Cal.Rep.Cit.   97,  630. 

Act  to  protect  stockholders  and  persons  dealing  with 
corporations  from  misrepresentations  of  officers:  See  post, 
Appendix,  title  Corporations. 

§  311.  Justice  of  the  peace  may  order  meeting  when. 
Whenever,  from  any  cause,  there  is  no  person  authorized 
to  call  or  to  preside  at  a  meeting  of  a  corporation,  any 
justice  of  the  peace  of  the  county  where  such  corporation 
is  established  may,  on  written  application  of  three  or  more 
of  the  stockholders  or  of  the  members  thereoi,  issue  a 
warrant  to  one  of  the  stockholders  or  members,  directing 
him  to  call  a  meeting  of  the  corporation,  by  giving  the 
notice  required,  and  the  justice  may  in  the  same  warrant 
direct  such  person  to  preside  at  such  meeting  until  a  clerk 
is  Qhosen  and  qualified,  if  there  is  no  other  officer  present 
legally  authorized  to  preside  thereat.    En.  March  21,  1872. 

§  312.  Majority  of  stock  must  be  represented.  At  all 
elections  or  votes  had  for  any  purpose  there  must  be  a 
majority  of  the  subscribed  capital  stock,  or  of  the  members, 
represented,    either    in    person    or    by    proxy    in    writing. 


§§  313-315  FORMATION    OF    CORPORATIONS.  94 

Every  person  acting  therein  (in  person  or  by  proxy  or 
representative)  must  be  a  member  thereof  or  a  bona  fide 
stockholder,  having  stock  in  his  own  name  on  the  stock 
books  of  the  corporation  at  least  ten  days  prior  to  the 
election.  Any  vote  or  election  had  other  than  in  accord- 
ance with  the  provisions  of  this  article  is  voidable  at  the 
instance  of  absent  (or  any)  stockholders  or  members,  and 
may  be  set  aside  by  petition  to  the  district  court  of  the 
county  where  the  same  was  held.  Any  regular  or  called 
meeting  of  the  stockholders  or  members  may  adjourn  from 
day  to  day,  or  from  time  to  time,  if  for  any  reason  there  is 
not  present  a  majority  of  the  subscribed  stock  or  mem- 
bers, or  no  election  had,  such  adjournment  and  the  reasons 
therefor  being  recorded  in  the  journal  of  proceedings  of 
the  board  of  directors.  En.  March  21,  1872.  Amd.  1877-8, 
7-9. 

Cal.Rep.Cit.     67,  533;      93,     36;      93,     39;   103,  363;   104,  652; 

109,  5S8;   109,  589;   109,  599;   112,     63;   115,  589;   115,  590; 

115,  594;   115,  609;    127,  683;   133,     47. 

Notice  of  meeting:      See  ante,  sec.  302. 

§  313.  Stock,  how  represented.  The  shares  of  stock 
of  an  estate  of  a  minor,  or  insane  person,  may  be  repre- 
sented by  his  guardian,  and  of  a  deceased  person  by  his 
executor  or  administrator.  En.  March  21,  1872.  Am'd. 
1873-4,  203. 

Cal.Rep.Cit.  109,  590  ;   115,  590. 

§  314.  Election  may  be  postponed.  If  from  any  cause 
an  election  does  not  take  place  on  the  day  appointed  in 
the  by-laws,  it  may  be  held  on  any  day  thereafter  as  is 
provided  for  in  such  by-laws,  or  to  which  such  election 
may  be  adjourned  or  ordered  by  the  directors.  If  an  elec- 
tion has  not  been  held  at  the  appointed  time,  and  no  ad- 
journed or  other  meeting  for  the  pui-pose  has  been  ordered 
by  the  directors,  a  meetii\g  may  be  called  by  the  stock- 
'holders  as  provided  in  section  310  of  this  article.  En. 
March  21,  1S72. 

§  315.  Complaints  and  proceedings  regarding  elections. 
Upon  the  application  of  any  person  or  body  corporate  ag- 
grieved by  any  election  held  by  any  corporate  body,  the 
district  court  of  the  district  in  which  such  election  is  held 


95  FOR.MATION     OF     CORPORATIONS.  §§  310-319 

must  proceed  forthwith  to  hear  the  allegations  and  proofs 
of  the  parties,  or  otherwise  inquire  into  the  matters  of 
complaint,  and  thereupon  confirm  the  election,  order  a  new 
one,  or  direct  such  other  relief  in  the  premises  as  accords 
with  right  and  justice.  Upon  filing  the  petition,  and  before 
any  further  proceedings  are  had  under  this  section,  five 
days'  notice  of  the  hearing  must  be  given,  under  the  direc- 
tion of  the  court  or  the  judge  thereof,  to  the  adverse  party 
or  those  to  be  affected  thereby.  En.  March  21,  1872.  Am'd. 
1877-8,  79. 

Cal.Rep.Cit.     93,     35;     93,     36;      93,     39;     93,     42;     98,305; 
103,  364;   115,  281;   115,  587;   115,  594;   115,  609;   126,     72. 

§  316.  False  certificate,  report,  or  notice  to  make  officers 
liable.  Any  officer  of  a  corporation  who  willfully  gives  a 
certificate,  or  willfully  makes  an  official  report,  public 
notice,  or  entry  in  any  of  the  records  or  books  of  the  cor- 
poration, concerning  the  corporation  or  its  business,  which 
is  false  in  any  material  representation,  shall  be  liable  for 
all  the  damages  resulting  therefrom  to  any  person  injured 
thereby,  and  if  two  or  more  officers  unite  or  participate 
in  the  commission  of  any  of  the  acts  herein  designated, 
they  shall  be  jointly  and  severally  liable.  En.  March  21, 
1872.     Am'd.  1873-4,  203. 

Liability  of  officer:     Pen.  Code,  sees.  558,  564. 

§317.  IVIeeting  by  consent  to  be  valid.  When  all  the 
stockholders  or  members  of  a  corporation  are  present  at 
any  meeting,  however  called  or  notified,  and  sign  a  written 
consent  thereto  on  the  record  of  such  meeting,  the  doings 
of  such  meeting  are  as  valid  as  if  had  at  a  meeting  legally 
called  and  noticed.    En.  March  21,  1872, 

§  318.  Proceedings  at  meeting  to  be  binding.  The  stock- 
holders or  members  of  such  corporation,  when  so  assem- 
bled, may  elect  officers  to  fill  all  vacancies  then  existing, 
and  may  act  upon  such  other  business  as  might  lawfully 
be  transacted  at  regular  meetings  of  the  corporation.  En. 
March  21,  1872. 

§  319.  Meetings,  where  held.  The  meetings  of  the  stock- 
holders and  board  of  directors  of  a  corporation  must  be 


J§  320-321a  FORMATION    OF     CORPORATIONS.  96 

held  at  its  oflice  or  principal  place  of  business.    En.  March 
21,  1872. 

Changing  place  of  business:      See   sec.   321. 

§  320.  Special  meetings,  how  called.  When  no  provision 
is  made  in  the  by-laws  for  regular  meetings  of  the  directors 
and  the  mode  of  calling  special  meetings,  all  meetings 
must  be  called  by  special  notice  in  writing,  to  be  given  to 
each  director  by  the  secretary,  on  the  order  of  the  presi- 
dent, or  if.  there  be  none,  on  the  order  of  two  directors. 
En.  March  21,  1872. 

Cal.Rep.Cit.     59,  681;     59,  682;     76,  154;      96,     79;     96,     82; 
109,       9;   109,     10;  130,  347;  134,  177. 

§  321.  Certain  books  to  be  open  for  Inspection.  Every 
corporation  doing  a  banking  business  in  this  state  must 
keep  in  its  office,  in  a  place  accessible  to  the  stockholders, 
depositors,  and  creditors  thereof,  and  for  their  use,  a  book, 
containing  a  list  of  all  stockholders  in  such  corporation, 
and  the  number  of  shares  of  stock  held  by  each,  and  every 
such  corporation  must  keep  posted  in  its  office,  in  a  con- 
spicuous place,  accessible  to  the  public  generally,  a  notice, 
signed  by  the  president  or  secretary,  showing:  First,  The 
names  of  the  directors  of  such  corporation,  becond.  The 
number  and  value  of  shares  of  stock  held  by  each  director. 

The  entries  on  such  book,  and  such  notice,  shall  be  made 
and  posted  within  twenty-four  hours  after  any  transfer  of 
stock,  and  shall  be  conclusive  evidence  against  each  di- 
rector and  stockholder  of  the  number  of  shares  of  stock 
held  by  each.  The  provisions  of  this  section  shall  apply  to 
all  banking  corporations,  formed  or  existing  before  twelve 
o'clock,  noon,  of  the  day  on  which  this  code  took  effect,  as 
well  as  to  those  formed  after  such  time.  En.  Stats. 
1875-6,  72. 

Cal.Rep.Cit.  89,  54. 

§321a.  Corporation  may  change  its  principal  place  of 
business.  Every  corporation  that  has  been  or  may  be  cre- 
ated under  the  general  laws  of  this  state  may  change  its 
principal  place  of  business  from  one  place  to  another  in 
the  same  county,  or  from  one  city  or  county  to  another 
city  or  county  within  this  state.  Before  such  change  is 
made,  the  consent  in  writing,  of  the  holders  of  two  thirds 
of  the  capital  stock  of  the  corporation  must  be  obtained 


97  CORPORATE    STOCK.  §  322 

and  filed  in  its  office.  When  such  consent  is  obtained  and 
filed,  notice  of  the  intended  removal  or  change  must  be 
published,  at  least  once  a  week,  for  three  successive  weeks, 
in  some  newspaper  published  in  the  county,  wherein  said 
principal  place  of  business  is  situated,  if  there  is  one  pub- 
lished therein;  if  not,  in  a  newspaper  of  an  adjoining 
county,  giving  the  name  of  the  county  or  city  where  it  is 
situated  and  that  to  which  it  is  intended  to  remove  it. 
Whenever  any  such  change  is  made,  a  copy  of  the  resolu- 
tion or  action  of  the  board  of  directors  authorizing  the 
same  together  with  a  copy  of  an  affidavit  of  tne  publica- 
tion above  required,  all  duly  certified  by  the  president  and 
secretary  of  the  corporation  with  the  corporate  seal  afiixed 
shall  be  filed  in  each  office  where  the  original  articles  of 
incorporation  are,  or  any  copy  thereof  is  required  to  be 
filed.  This  section  shall  not  be  construed  to  require  such 
consent,  notice  or  publication  in  the  case  of  any  such  re- 
moval from  one  location  to  another  in  the  same  city,  town 
or  village.    En.  Stats.  1875-6,  73.    Am'd.  1903,  254. 


CHAPTER    II. 
CORPORATE    STOCK,  n 

Article  I.     Stock  and  Stockholders,   §§  322-327. 
II.     Assessment  of  Stock,  §§  331-349, 

ARTICLE    I. 

STOCK    AND     STOCKHOLDERS. 

§  322.      Liabilities  of   stockholders. 

§   323.      Certificates,   how  and  when   issued. 

§  324.     Shares    personal    property.      Transfer    of    stock.      Irrigation 

stock. 
§  325.     Transfer  of  shares  held  by  married  women,  etc.     Dividends 

payable  to  married  women. 
§   326.     Affidavit  or  bond  may  be   required  before  transfer. 
§  327.      Contract  to   relieve  directors  void. 

§322.  Liabilities  of  stockholders.  Each  stockholder  of 
a  corporation  is  individually  and  personally  liable  for  such 
proportion  of  its  debts  and  liabilities  as  the  amount  of 
stock  or  shares  owned  by  him  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corporation,  and 
for  a  like  proportion  only  of  each  debt  or  claim  against  the 

Civ.   Code— 5 


5  322  CORPORATE    STOCK.  9R 

corporation.  Any  creditor  of  tlie  corporation  may  Insti- 
iLUte  joint  or  several  actions  against  any  of  its  stockholders, 
for  the  proportion  of  his  claim  payable  by  each,  and  in 
such  action  the  court  must  ascertain  the  proportion  of  the 
claim  or  debt  for  which  each  defendant  is  liable,  and  a  sev- 
eral judgment  must  be  rendered  against  each,  in  conform- 
ity therewith.  If  any  stockholder  pays  his  proportion  of 
any  debt  due  from  the  corporation,  incurred  while  he  was 
such  stockholder,  he  is  relieved  from  any  further  personal 
liability  for  such  debt;  and  if  an  action  has  been  brought 
against  him  upon  such  debt,  it  shall  be  dismissed,  as  to 
him,  upon  his  paying  the  costs,  or  such  proportion  thereof 
as  may  be  properly  chargeable  against  him.  The  liability 
of  each  stockholder  is  determined  by  the  amount  of  stock 
or  shares  owned  by  him  at  the  time  the  debt  or  liability 
was  incurred;  and  such  liability  is  not  released  by  any 
subsequent  transfer  of  stock.  The  term  stockholder,  as 
used  in  this  section,  shall  apply  not  only  to  such  persons 
as  appear  by  the  books  of  the  corporation  to  be  such,  but 
also  to  every  equitable  owner  of  stock,  although  the  same 
appear  on  the  books  in  the  name  of  another,  and  also  to 
every  person  who  has  advanced  the  installments  or  pur- 
chase money  of  stock  in  the  name  of  a  minor,  so  long  as 
the  latter  remains  a  minor;  and  also  to  every  guardian,  or 
other  trustee,  v/ho  voluntarily  Invests  any  trust  funds  in 
the  stock.  Trust  funds  in  the  hands  of  a  guardian,  or 
trustee,  shall  not  be  liable  under  the  provisions  of  this 
section,  by  reason  of  any  such  investment,  nor  shall  the 
person  for  whose  benefit  the  investment  is  made  be  re- 
sponsible in  respect  to  the  stock  until  he  becomes  compe- 
tent and  able  to  control  the  same;  but  the  responsibility 
of  the  guardian  or  trustee  making  the  investment  shall  con- 
tinue until  that  period.  Stock  held  as  collateral  security, 
or  by  a  trustee,  or  in  any  other  representative  capacity, 
does  not  make  the  holder  thereof  a  stockholder  within  the 
meaning  of  this  section,  except  in  the  cases  above  men- 
tioned, so  as  to  charge  him  with  any  proportion  of  the 
debts  or  liabilities  of  the  corporation;  but  the  pledgor,  or 
person  or  estate  represented,  is  to  be  deemed  the  stock- 
holder, as  respects  such  liability.  In  corporations  having 
no  capital  stock,  each  member  is  individually  and  person- 
ally liable  for  his  proportion  of  its  debts  and  liabilities. 


99 


CORPORATE    STOCK. 


§s  3: 


59,  109 

59,  110 

59,  286 

62,  461; 

64,  121; 

64,  2S9 

65,  210 

87,  29 

87,  31; 

87,  32; 

95,  5S9 

97,  95 

99.  92 

107,  381; 

107,  446; 

108,   5 

109,  588 

111,  63 

111,   66; 

113,  25; 

115,  594 

116,  384 

118,  276 

122,  672; 

122.  673; 

124,  150 

125,   8 

125,  412 

127,  82; 

127,  675; 

133,  507 

136,  513. 

and  similar  actions  may  be  brought  against  him,  either 
alone  or  jointly  with  other  members,  to  enforce  such  lia- 
bility, as  by  this  section  may  be  brought  against  one  or 
more  stockholders,  and  similar  judgments  may  be  ren- 
dered. The  liability  of  each  stockholder  of  a  corporation 
formed  under  the  laws  of  any  other  state  or  territory  of 
the  United  States,  or  of  any  foreign  country,  and  doing 
business  within  this  state,  shall  be  the  same  as  the  liabil- 
ity of  a  stockholder  of  a  corporation  created  under  the 
constitution  and  laws  of  this  state.  En.  March  2i,  1872. 
Am'd.  1873-4,  203;  1875-6,  73. 

Cal.Rep.Cit. 

64,  288; 

95,  580; 
108,  4; 
115,  380; 
122,  674; 
130,  274; 

Act  to  protect  stockholders  from  fraudulent  representa- 
tions of  officers:     See  post,  Appendix,  title  Corporations. 

Liability  of  stockholders  for  debts  of  the  corporation  is 
declared  in  Const.  Cal.  1879,  art.  XII,  sec.  3. 

§  323.  Certificates,  how  and  when  issued.  All  corpora- 
tions for  profit  must  issue  certificates  for  stock  when  fully 
paid  up,  signed  by  the  president  and  secretary,  and  may 
provide,  in  their  by-laws,  for  issuing  certificates  prior  to 
the  full  payment,  under  such  restrictions  and  for  such  pur- 
poses as  their  by-laws  may  provide.     En.  March  21,  1S72. 

Cal.Rep.Cit.   82,  603;   96,  329;   101,  79;   135,  583. 

§324.  Shares  personal  property.  Transfer  of  stock.  Ir- 
rigation stock.  Whenever  the  capital  stock  of  any  cor- 
poration is  divided  into  shares,  and  certificates  therefor 
are  issued,  such  shares  of  stock,  except  as  hereinafter  pro- 
vided, are  personal  property,  and  may  be  transferred  by 
indorsement  by  the  signature  of  the  proprietor,  his  agent, 
attorney,  or  legal  representative,  and  the  delivery  of  the 
certificate;  but  such  transfer  is  not  valid,  except  as  to  the 
parties  thereto,  until  the  same  is  so  entered  upon  the  books 
of  the  corporation  as  to  show  the  names  of  the  parties  by 
whom  and  to  whom  transferred,  the  number  of  the  certifi- 
cate, the  number  or  designation  of  the  shares,  and  the 
date  of  transfer;  provided,  however,  that  any  corporation 
organized  for,  or  engaged  in  the  business  of  selling,  dis- 


§§  325,  326  CORPORATE    STOCK.  100 

tributing,  supplying,  or  delivering  water  for  irrigation  pur- 
poses or  for  domestic  use,  may  in  its  by-laws  provide  that 
water  shall  only  be  so  sold,  distributed,  supplied,  or  de- 
livered to  owners  of  its  capital  stock,  and  that  such  stock 
shall  be  appurtenant  to  certain  lands  when  the  same  are 
described  in  the  certificate  issued  therefor;  and  when  such 
certificate  shall  be  so  issued,  and  a  certified  copy  of  such 
by-law  recorded  in  the  ofiice  of  the  county  recorder  in  the 
county  where  such  lands  are  situated,  the  shares  of  stock 
so  located  on  any  land  shall  only  be  transferred  with  said 
lands,  and  shall  pass  as  an  appurtenance  thereto.  En. 
March  21,  1872.     Am'd.  1895,  118. 

Cal.Rep.Cit.      53,431;      58,428;      63,364;      72,       9;      79,331; 
82,  603;  ■  S4,  137;   108,  493;   109,  632;   113,  276;   113,  277; 
113,  27S;   126,  534;   134,  410;   136,  513. 

§  325.  Transfer  of  shares  held  by  married  women,  etc. 
Dividends  payable  to  married  women.  Shares  of  stock  in 
corporations  held ,  or  owned  by  a  married  woman  may  be 
transferred  by  her,  her.  agent,  or  attorney,  without  the 
signature  of  her  husband,  in  the  same  manner  as  if  such 
married  woman  were  a  feme  sole.  All  dividends  payable 
upon  any  shares  of  stock  of  a  corporation  held  by  a  mar- 
ried woman  may  be  paid  to  such  married  woman,  her  agent 
or  attorney,  in  the  same  manner  as  if  she  were  unmar- 
ried, and  it  is  not  necessary  for  her  husband  to  join  in  a 
receipt  therefor;  and  any  proxy  or  power  given  by  a  mar- 
ried woman,  touching  any  shares  of  stock  of  any  corpora- 
tion owned  by  her,  is  valid  and  binding  without  the 
signature  of  her  husband,  the  same  as  if  she  were  unmar- 
ried.   En.  March  21,  1872. 

§  326.  Affidavit  or  bond  may  be  required  before  trans- 
fer. When  the  shares  of  stock  in  a  corporation  are  owned 
by  parties  residing  out  of  the  state,  the  president,  secre- 
tary, or  directors  of  the  corporation,  before  entering  any 
transfer  of  the  shares  on  its  books,  or  issuing  a  certificate 
therefor  to  the  transferee,  may  require  from  the  attorney 
or  agent  of  the  nonresident  owner,  or  from  the  person 
claiming  under  the  transfer,  an  affidavit  or  other  evidence 
that  the  nonresident  owner  was  alive  at  the  date  of  the 
transfer,  and  if  such  affidavit  or  other  satisfactory  evi- 
dence be  not  furnished,   may   require   from   the   attorney. 


101  CORPORATE     STOCK.  §§  327,  331 

agent,  or  claimant,  a  bond  of  indemnity,  with  two  sureties, 
satisfactory  to  the  officers  of  the  corporation;  or,  if  not  so 
satisfactory,  then  one  approved  by  a  judge  of  the  supei'ior 
court  of  the  county  in  which  the  principal  office  of  the  cor- 
poration is  situated,  conditioned  to  protect  the  corporation 
against  any  liability  to  the  legal  representatives  of  the 
owner  of  the  shares,  in  case  of  his  or  her  death  before  the 
transfer;  and  if  such  affidavit  or  othej:  evidence  or  bond 
be  not  furnished  when  required,  as  herein  provided,  neither 
the  corporation,  nor  any  officer  thereof,  shall  be  liable  for 
refusing  to  enter  the  transfer  on  the  books  of  the  corpora- 
tion. En.  March  21,  1872.  Am'd.  1873-4,  205;  1883,  4. 
Cal.Rep.Cit.  58,   428. 

§327.  Contract  to  relieve  directors  void.  Any  contract 
or  contracts,  verbal  or  written,  hereafter  made,  whereby  it 
is  sought  directly  or  indirectly  to  relieve  any  director  or 
trustee  of  any  corporation  or  joint  stock  association  from 
any  liability  imposed  by  section  three  of  article  twelve  of 
the  constitution  of  California,  are  hereby  declared  to  be 
and  shall  be  null  and  void.    En.  Stats.  1880,  9. 

Cal.Rep.Cit.  84.  422. 


ARTICLE   II.. 
ASSESSMENTS    OF    STOCK. 

I  331.  Directors  may  levy  assessments. 

I   332.  Limitation.     How  levied. 

§  333.  Levy  of  assessment.     Old  assessment  remaining  unpaid. 

§  334.  What  order  shall  contain. 

§  335.  Notice   of   assessment.      Form. 

§  336.  Publication  and  service  of  notice. 

§  337.  Delinquent  notice.     Form. 

§   338.  Contents  of  notice. 

§  339.  How   published. 

§  340.  Jurisdiction   acquired,   how. 

§   341.  Sale  to  be  by  public  auction. 

I  342.  Highest  bidder  to  be  the  purchaser. 

§  343.  In  default  of  bidders,  corporation  may  purchase. 

§   344.  Disposition   of  stock  purchased   by  corporation. 

§   345.  Extension  of  time  of  delinquent  sale. 

§   346.  Assessments   shall  not  be   invalidated. 

§   34t.  Action  for  recovery  of  stock,  and  limitation  thereof. 

§   348.  Affidavits  of  publication.     Affidavits  of  sale.      To  be  filed. 

§  349.  Waiver  of  sale.     Action  to  recover  assessment. 

§  331.  Directors  may  levy  assessments.  The  directors 
of  any  corporation  formed  or  existing  under  the  laws  of 
this  state,  after  one  fourth  of  its  capital   stock  has  been 


§§  332-334  CORPORATE    STOCK.  102 

subscribed,  may,  for  the  purpose  of  paying  expenses,  con- 
ducting business,  or  paying  debts,  levy  and  collect  assess- 
ments upon  the  subscribed  capital  stock  thereof,  in  the 
manner  and  form,  and  to  trie  extent  provided  herein.  En. 
March  21,  1872.    Am'd.  1873-4,  206. 

Cal.Rep.Cit.      65,194;      C5,  200 ;      65,209;      65,210;      80,377; 
S2,  603;      92,     50;    101,     80;   108,  492;   109,  588;   llti,  263; 
126,  586;   127,     82;   129,  296;    133,     66;   135,  632. 

§  332.  Limitation.  How  levied.  No  one  assessment 
must  exceed  ten  per  cent  of  the  amount  of  the  capital 
stock  named  in  the  articles  of  incorporation,  except  in  the 
cases  in  this  section  otherwise  provided  for,  as  follows: 

1.  If  the  whole  capital  of  a  corporation  has  not  been  paid 
up,  and  the  corporation  is  unable  to  meet  its  liabilities  or 
to  satisfy  the  claims  of  its  creditors,  the  assessment  may 
be  for  the  full  amount  unpaid  upon  the  capital  stock;  or 
if  a  less  amount  is  sufficient,  then  it  may  be  for  such  a 
percentage  as  will  raise  that  amount; 

2.  The  directors  of  railroad  corporations  may  assess  the 
capital  stock  in  installments  of  not  more  than  ten  per  cent 
per  month,  unless  in  the  articles  of  incorporation  it  is 
otherwise  provided; 

3.  The  directors  of  fire  or  marine  insurance  corporations 
may  assess  such  a  percentage  of  the  capital  stock  as  they 
deem  proper.     En.  March  21,  1872. 

Cal.Rep.Cit.      65,194;      65.199;      65,200;      65,202;      65,201; 
65,209;      65,210;      93,549;      93,550;      99,     14;   107,450. 

§  333.  Levy  of  assessment.  Old  assessment  remaining 
unpaid.  No  assessment  must  be  levied  while  any  portion 
of  a  previous  one  remains  unpaid,  unless: 

1.  The  power  of  the  corporation  has  been  exercised  in 
accordance  with  the  provisions  of  this  article  for  the 
purpose  of  collecting  such  previous  assessment; 

2.  The  collection  of  the  previous  assessment  has  been 
enjoined;  or 

3.  The  assessment  falls  within  the  provisions  of  either 
the  first,  second,  or  third  subdivision  of  section  332.  En. 
March  21,  1872. 

Cal.Rep.Cit.  65,  195  ;   65,  201. 

§  334.  What  order  shall  contain.  Every  order  levying 
an  assessment  must  specify  the  amount  thereof,  when,  to 


103  CORPORATE    STOCK.  §§  335,  336 

whom,  and  vfhere  payable;  fix  a  day  subsequent  to  the  full 
term  of  publication  of  the  assessment  notice,  on  which 
the  unpaid  assessments  shall  be  delinquent,  not  less  than 
thirty  nor  more  than  sixty  days  from  the  time  of  making 
the  order  levying  the  assessment; 'and  a  day  for  the  sale 
of  delinquent  stock,  not  less  than  fifteen  nor  more  than 
sixty  days  from  the  day  the  stock  is  declared  delinquent. 
En.  March  21,  1872. 

§  335.  Notice  of  assessment.  Form.  Upon  the  making 
of  the  order,  the  secretary  shall  cause  to  be  published  a 
notice  thereof,  in  the  following  form: 

(Name  of  corporation  in  full.  Location  of  principal  place 
of  business).  Notice  is  hereby  given,  that  at  a  meeting 
of  the  directors,  held  on  the  (date),  an  assessment  of 
(amount)  per  share  was  levied  upon  the  capital  stock  of 
the  corporation,  payable  (when,  to  whom,  and  where). 
Any  stock  upon  which  this  assessment  shall  remain  unpaid 
on  the  (day  fixed)  will  be  delinquent  and  advertised  for 
sale  at  public  auction,  and,  unless  payment  is  made  before, 
will  be  sold  on  the  (day  appointed),  to  pay  the  delinquent 
assessment,  together  with  costs  of  advertising  and  ex- 
penses of  sale. 

(Signature  of  secretary,  with  location  of  office).  En. 
March  21,  1872. 

Cal.Rep.Cit.  101,  81. 

§336.  Publication  and  service  of  notice.  The  notice 
must  be  personally  served  upon  each  stockholder,  or,  in 
lieu  of  personal  service,  must  be  sent  through  the  mail, 
addressed  to  each  stockholder  at  his  place  of  residence,  if 
known,  and  if  not  known,  at  the  place  where  the  principal 
office  of  the  corporation  is  situated,  and  be  published  once 
a  week,  for  four  successive  weeks,  in  some  newspaper  of 
general  circulation  and  devoted  to  the  publication  of 
general  news,  published  at  the  place  designated  in  the 
articles  of  incorporation  as  the  principal  place  of  business, 
and  also  in  some  newspaper  published  in  the  county  in 
which  the  works  of  the  corporation  are  situated,  if  a  paper 
be  published  therein.  If  the  works  of  the  corporation  are 
not  within  a  state  or  territory  of  the  United  States,  pub- 
lication in  a  paper  of  the  place  where  they  are  situated  is 
not  necessary.    If  there  be  no  newspaper  published  at  the 


iS  337-339  CORPORATE    STOCK.  104 

place  designated  as  the  principal  place  of  business  of  the 
corporation,  then  the  publication  must  be  made  in  some 
other  newspaper  of  the  county,  if  there  be  one,  and  if  there 
be  none,  then  in  a  newspaper  published  in  an  adjoining 
county.    En.  March  21,  1872.    Am'd.  1873-4,  206. 

§  337.  Delinquent  notice.  Form.  If  any  portion  of  the 
assessment  mentioned  in  the  notice  remains  unpaid  on  the 
day  specified  therein  for  declaring  the  stock  delinquent, 
the  secretary  must,  unless  otherwise  ordered  by  the  board 
of  directors,  cause  to  be  published  in  the  same  papers  in 
which  the  notice  hereinbefore  provided  for  shall  have 
been  published,  a  notice  substantially  in  the  following 
form: 

(Name  in  full.  Location  of  principal  place  of  business). 
NOTICE. — There  is  delinquent  upon  the  following  de- 
scribed stock,  on  account  of  assessment  levied  on  the 
(date),  (and  assessments  levied  previous  thereto,  if  any), 
the  several  amounts  set  opposite  the  names  of  the  respec- 
tive shareholders  as  follows:  (Names,  number  of  certificate, 
number  of  shares,  amount).  And  in  accordance  with  law 
(and  an  order  of  the  board  of  directors,  made  on  the 
[date],  if  any  such  order  shall  have  been  made),  so  many 
shares  of  each  parcel  of  such  stock  as  may  be  necessary 
will  be  sold,  at  the  (particular  place),  on  the  (date),  at 
(the  hour)  of  such  day,  to  pay  delinquent  assessments 
thereon,  together  with  costs  of  advertising  and  expenses 
of  the  sale. 

(Name  of  secretary,  with  location  of  office).  En.  March 
21,  1872. 

Cal.Rep.Cit.  101,  76;   108,  493;   108,  568;   109,  8. 

§  338.  Contents  of  notice.  The  notice  must  specify 
every  certificate  of  stock,  the  number  of  shares  it  repre- 
sents, and  the  amount  due  thereon,  except  where  certifi- 
cates may  not  have  been  issued  to  parties  entitled  thereto, 
in  which  case  the  number  of  shares  and  amount  due 
thereon,  together  with  the  fact  that  the  certificates  for 
such  shares  have  not  been  issued,  must  be  stated.  En. 
March  21,  1872. 

Cal.Rep.Cit.  101,  76;   108,  568. 

§339.  How  published.  The  notice,  when  published  in 
a  daily  paper,  must  be  published  for  ten  days,  excluding 


105  CORPORATE    STOCK.  §§  340-343 

Sundays  and  holidays,  previous  to  the  day  oi  sale.  When 
published  in  a  weekly  paper,  it  must  be  published  in  each 
issue  for  two  weeks  previous  to  the  day  of  sale.  The  first 
publication  of  all  delinquent  sales  must  be  at  least  fifteen 
days  prior  to  the  day  of  sale.    En.  March  21,  1S72. 

Cal.Rep.Cit.   101,  76;   108,  493;   108,  568;   108,  569;   129,  296. 

§  340.  Jurisdiction  acquired,  hov^.  By  the  publication 
of  the  notice,  the  corporation  acquires  jurisdiction  to  sell 
and  convey  a  perfect  title  to  all  of  the  stock  described  in 
the  notice  of  sale  upon  which  any  portion  of  the  assess- 
i.ient  or  costs  of  advertising  remains  unpaid  at  the  hour 
appointed  for  the  sale,  but  must  sell  no  more  of  such  stock 
than  is  necessary  to  pay  the  assessments  due  and  costs  of 
Kale.     En.  March  21,  1872. 

§  341.  Sale  to  be  by  public  auction.  On  the  day,  at  the 
place,  and  at  the  time  appointed  in  the  notice  of  sale,  the 
secretary  must,  unless  otherwise  ordered  by  the  directors, 
sell  or  cause  to  be  sold  at  public  auction,  to  the  highest 
bidder  for  cash,  so  many  shares  of  each  parcel  of  tne 
described  stock  as  may  be  necessary  to  pay  the  assessment 
and  charges  thereon,  according  to  the  terms  of  sale;  if 
payment  is  made  before  the  time  fixed  for  sale,  the  party 
paying  is  only  required  to  pay  the  actual  cost  of  advertis- 
ing, in  addition  to  the  assessment.    En.  March  21,  1872. 

§342.  Highest  bidder  to  be  the  purchaser.  The  person 
offering  at  such  sale  to  pay  the  assessment  and  costs  for 
the  smallest  number  of  shares  or  fraction  of  a  share  is 
the  highest  bidder,  and  the  stock  purchased  must  be  trans- 
ferred to  him  on  the  stock  books  of  the  corporation,  on  pay- 
ment of  the  assessment  and  costs.     En.  March  21,  1872. 

§343,     In  default  of  bidders,  corporation  may  purchase. 

If,  at  the  sale  of  stock,  no  bidder  offers  the  amount  of  the 
assessments  and  costs  and  charges  due,  the  same  may  be 
bid  in  and  purchased  by  the  corporation,  through  the 
secretary,  president,  or  any  director  thereof,  at  the  amount 
of  the  assessments,  costs,  and  charges  due;  and  the  amount 
of  the  assessments,  costs,  and  charges  must  be  credited  as 
paid  in  full  on  the  books  of  the  corporation,  and  entry  of 
the  transfer  of  the  stock  to  the  corporation  must  be  made 
on  the  books  thereof.     While  the  stock  remains  the  prop- 


§§  344-347  CORPORATE    STOCK.  106 

erty  of  the  corporation  it  is  not  assessable,  nor  must  any 
dividends  be  declared   thereon;    but  all  assessments   and 
dividend*  must  be  apportioned  upon  the  stock  held  by  the 
stockholders  of  the  corporation.     En.  March  21,  1872. 
Cal.Rep.Cit.  57,  398. 

§  344.  Disposition  of  stock  purchased  by  corporation. 
All  purchases  of  its  own  stock  made  by  any  corporation 
vest  the  legal  title  to  the  same  in  the  corporation;  and  the 
stock  so  purchased  is  held  subject  to  the  control  of  the 
stockholders,  who  may  make  such  disposition  of  the  same 
as  they  deem  fit,  in  accordance  with  the  by-laws  of  the 
corporation  or  vote  of  a  majority  of  all  the  remaining 
shares.  Whenever  any  portion  of  the  capital  stock  of  a 
corporation  is  held  by  the  corporation  by  purchase,  a 
majority  of  the  remaining  shares  is  a  majority  of  the 
stock  for  all  purposes  of  election  or  voting  on  any  question 
at  a  stockholders'  meeting.    En.  March  21,  1872. 

Cal.Rep.Cit.  57,  398;    72,  33;   109,  588. 

§  345.  Extension  of  time  of  delinquent  sale.  The  dates 
fixed  in  any  notice  of  assessment  or  notice  of  delinquent 
sale,  published  according  to  the  provisions  hereof,  may  be 
extended  from  time  to  time  for  not  more  than  thirty  days, 
by  order  of  the  directors,  entered  on  the  records  of  the 
corporation;  but  no  order  extending  the  time  for  the  per- 
formance of  any  act  specified  in  any  notice  is  effectual 
unless  notice  of  such  e^ctension  or  postponement  is  ap- 
pended to  and  published  with  the  notice  to  which  the  order 
relates.    En.  March  21,  1872. 

§346.  Assessments  shall  not  be  invalidated.  No  assess- 
ment is  invalidated  by  a  failure  to  make  publication  of  the 
notices  hereinbefoi'e  provided  for,  nor  by  the  nonperform- 
ance of  any  act  required  in  order  to  enforce  the  payment 
of  the  same;  but  in  case  of  any  substantial  error  or 
omission  in  the  course  of  proceedings  for  collection,  all 
previous  proceedings,  except  the  levying  of  the  assessment, 
are  void,  and  publication  must  be  begun  anew.  En.  March 
21,  1872. 

Cal.Rep.Cit.   76,  28  ;   108,  495  ;   109,  8. 

§  347.  Action  for  recovery  of  stock,  and  limitation 
thereof.     No    action    must   be    sustained    to   recover    stock 


107  CORPORATE    STOCK.  §§  348,  349 

sold  for  delinquent  assessments,  upon  ihe  ground  of 
iri-egularity  in  the  assessment,  irregularity  or  detect  of  the 
notice  of  sale,  or  defect  or  irregularity  in  the  sale, 
unless  the  party  seeking  to  maintain  such  action  first 
pays  or  tenders  to  the  corporation,  or  the  party  hold- 
ing the  stock  sold,  the  sum  for  which  the  same  was 
sold,  together  with  all  subsequent  assessments  which  may 
have  been  paid  thereon  and  interest  on  such  sums  from 
the  time  they  were  paid;  and  no  such  action  must  be  sus- 
tained unless  the  same  is  commenced  by  the  filing  of  a 
complaint  and  the  issuing  of  a  summons  thereon  within 
six  months  after  such  sale  was  made.  En.  March  21,  1872. 
Cal.Rep.Cit.  76,  28;   133,  66. 

§348.  Affidavits  of  publication.  Affidavits  of  sale.  To 
be  filed.  The  publication  of  notice  required  by  this  article 
may  be  proved  by  the  affidavit  of  the  printer,  foreman,  or 
principal  clerk  of  the  newspaper  in  which  the  same  was 
published;  and  the  affidavit  of  the  secretary  or  auctioneer 
is  prima  facie  evidence  of  the  time  and  place  of  sale,  of 
the  quantity  and  particular  description  of  the  stock  sold, 
and  to  whom,  and  for  what  price,  and  of  the  fact  of  the 
purchase  money  being  paid.  The  affidavits  must  be  filed 
in  the  ofiice  of  the  corporation,  and  copies  of  the  same, 
certified  by  the  secretary  thereof,  are  prima  facie  evidence 
of  the  facts  therein  stated.  Certificates,  signed  by  the 
secretary,  and  under  the  seal  of  the  corporation,  are  prima 
facie  evidence  of  the  contents  thereof.  En.  March  21,  1872. 
Am'd.  1873-4,  207. 

§  349.  Waiver  of  sale.  Action  to  recover  assessment. 
On  the  day  specified  for  declaring  the  stock  delinquent, 
or  at  any  time  subsequent  thereto  and  before  the  sale  of 
the  delinquent  stock,  the  board  of  directors  may  elect  to 
waive  further  proceedings  under  this  chapter  for  the  col- 
lection of  delinquent  assessments,  or  any  part  or  portion 
thereof,  and  may  elect  to  proceed  by  action  to  recover  the 
amount  of  the  assessment  and  the  costs  and  expenses 
already  incurred,  or  any  part  or  portion  thereof.  En. 
March  21,  1872. 

Cal.Rep.Cit.   101,     76;   101.     77;  108,  493;   108,  495;   109,       5; 
110,  635  ;    129,  296. 


§  354  CORPORATE    POWERS.  108 


CHAPTER    III. 
CORPORATE    POWERS. 

Article  I.  General   Powers,   §§  354-364. 

II.  Records,   §§  377,  378. 

III.  Examination    of   Corporation,    §§  382-384. 

IV.  Judgment     Against    and     Sale     o£     Corporate    Property, 

i§  388-393. 

ARTICLE    I. 

GENERAL    POWERS. 

§  354.      Powers  of  corporations. 

§  355.      Limitation  of  powers. 

§  356.      Banking  expressly  prohibited. 

S  357.      Misnomer  does  not  invalidate  instrument. 

§  358.     Corporation  to  organize  within  one  year. 

§  359.      Increasing   and  diminishing  capital   stock,   how. 

§  360.     Corporations  may  acquire  read  property,  and  how  much. 

§  361.  Consolidation  of  mining  corporations  ow,ning  adjoining 
claims. 

S  361a.  Transfer  of  franchise  not  valid  without  consent  of  stock- 
holders. 

§  362.     Amendment  of  articles  or  certificate  of  incorporation. 

§   363.      Corporations  may  own  their  lots  and  buildings. 

§  363.     Correction  of  erroneous  filing  of  articles  of  incorporation, 

§   364.     Corporations  may  transfer  foreign  concessions. 

§  354.  Powers  of  corporations.  Every  corporation,  as 
such,  has  power: 

1.  Of  succession  by  its  corporate  name,  for  the  period 
limited;  and  when  no  period  is  limited,  perpetually; 

2.  To  sue  and  be  sued  in  any  court; 

3.  To  make  and  use  a  common  seal,  and  alter  the  same 
at  pleasure; 

4.  To  purchase,  hold,  and  convey  such  real  and  personal 
estate  as  the  purposes  of  the  corporation  may  require,  not 
exceeding  the  amount  limited  in  this  part; 

5.  To  appoint  such  subordinate  oflBcers  or  agents  as  the 
business  of  the  corporation  may  require,  and  to  allow  them 
suitable  compensation; 

6.  To  make  by-laws,  not  inconsistent  with  any  existing 
law,  for  the  management  of  its  property,  the  regulation  of 
its  affairs,  and  for  the  transfer  of  its  stock; 

7.  To  admit  stockholders  or  members,  and  to  sell  their 
stock  or  shares  for  the  payment  of  assessments  or  install- 
ments; 


109  CORPORATE    POWERS.  §§  355,  356 

8.  To  enter  into  any  obligations  or  contracts  essential  to 

the  transaction  of  its  ordinary  affairs,  or  for  the  purposes 

of  the  corporation.    En.  March  21,  1872. 

Cal.Rep.Cit.  52,  59;  56,  63;  62.  104;  63,  363;  93.  309; 
109,  163;  118,  138;  126,  417.  Subd.  4—117,  177;  118.  138; 
126.  416.       Subd.   6—116.  414. 

The  code,  in  defining  a  corporation,  says  it  has  "certain 
powers  and  duties  of  a  natural  person":  Sec.  283.  Section 
354  proceeds  to  enumerate  these  powers,  and  section  355 
limits  its  powers  to  those  enumerated  and  to  those  neces- 
sarily incidental. 

Succession  for  period  limited:  See,  Code  limit  of  fifty 
years,  sec.  290.  Limit  for  homestead  corporations  ten 
years:    Sec.  557. 

Where  action  against  corporation  may  be  brought:  See 
Const.  Cal.,  1879,  art.  XII,  sec.  16;  see  Code  Civ.  Proc, 
sec.  395. 

Acquiring  property  by  eminent  domain:  See  Code  Civ. 
Proc,  sees.  1237  et  seq. 

Power  to  make  by-laws:    See  ante,  sec.  301. 

Selling  delinquent  shares:    See  ante,  sees.  331  et  seq. 

§  355.  Limitation  of  powers.  In  addition  to  the  powers 
enumerated  in  the  preceding  section,  and  to  those  expressly 
given  in  that  title  of  this  part  under  which  it  is  incor- 
porated, no  corporation  shall  possess  or  exercise  any  cor- 
porate powers,  except  such  as  are  necessary  to  the  exercise 
of  the  powers  so  enumerated  and  given.  En.  March  21, 
1872. 

Cal.Rep.Cit.  62,  104. 

Incidental  powers. — This  section  is  a  negative  grant  of 
incidental  powers,  with  respect  to  which,  see  sec.  354. 

§  356.  Banking  expressly  prohibited.  No  corporation 
shall  create  or  issue  bills,  notes,  or  other  evidences  of  debt, 
upon  loans  or  otherwise,  for  circulation  as  money.  En. 
March  21,  1872. 

Issuing  or  circulating  paper  money,  except  as  authorized 
by  the  United  States,  pimished  by  Penal  Code,  sec.  648. 

Constitutional  provisions  to  the  same  purpose:  Const. 
Cal.,  1879,  art.  XII,  sec.  5.  That  this  limitation  upon  cor- 
porate powers  does  not  prevent  the  execution  of  negotiable 
instruments,  see  sec.  354,  subd.  8. 


5§  357-309  CORPORATE    POWERS.  IIC 

§357.  Misnomer  does  not  invalidate  instrument.  The 
misnomer  of  a  corporation  in  any  written  instrument  does 
not  invalidate  the  instrument,  if  it  can  be  reasonably 
ascertained  from  it  what  corporation  is  intended.  En. 
March  21,  1872. 

Cal.Rep.Cit.  93,  314;  138,  194. 

§  358.     Corporation    to    organize   witiiin    one   year.     If   a 

corporation  does  not  organize  and  commence  tne  transac- 
tion of  its  business,  or  the  construction  of  its  works  within 
one  year  from  the  date  of  its  incorporation,  or  if,  after  its 
organization  and  commencement  of  its  business,  it  shall 
lose  or  dispose  of  all  of  its  property,  and  shall  fail  for  a 
period  of  two  years  to  elect  officers  and  transact,  in  regular 
order,  the  business  of  said  corporation,  its  corporate  pow- 
ers shall  cease,  and  the  said  corporation  may  be  dissolved 
at  the  instance  of  any  creditor  of  the  said  corporation,  at 
the  suit  of  the  state,  on  the  information  of  the  attorney- 
general,  but  the  resumption  of  its  business  in  good  faith  by 
such  corporation  prior  to  the  commencement  thereof  shall 
be  a  bar  to  such  suit.  The  due  incorporation  of  any  com- 
pany claiming  in  good  faith  to  be  a  corporation  under  this 
part,  and  doing  business  as  such,  or  its  right  to  exercise 
corporate  powers,  shall  not  be  inquired  into  collaterally  in 
any  private  suit  to  which  such  de  facto  corporation  may  be 
a  party;  but  such  inquiry  may  be  had  at  the  suit  of  the 
state  on  information  of  the  attorney-general;  provided, 
however,  as  to  any  company  claiming  in  good  faith  to  be, 
and  which  has  been  doing  business  for  ten  consecutive 
years  as  a  corporation,  no  such  inquiry  shall  be  made 
either  by  the  state  or  by  any  person  whatsoever.  En. 
March  21,  1872.  Am'd.  1900-01,  632. 

Cal.Rep.Cit.      64,     72;      77.372;      80,186;      82,186;      97,277; 

102,     64;    102,     66;    102,     67;    106,  310;    109,  601;    U7,  177; 

126,  545;   131,  154;   137,  445. 

Same  respecting  street  railroads:    See   post,  sec.  502. 
Provision  respecting  railroad  companies,  two  years:   See 
post,  sec.  468. 

§  359.  Increasing  and  diminishing  capital  stock,  how. 
No  corporation  shall  issue  stocks  or  bonds  except  for 
money  paid,  labor  done  or  property  actually  received,  and 
all   fictitious   increase   of   stock  or   indebtedness    is    void. 


Hi  CORPORATE     POWERS.  §  359 

Every  corporation  may  increase  or  diminish  its  capital 
stock,  and  every  corporation  or  two  or  more  corporations, 
may  create  or  increase  its  or  their  bonded  indebtedness, 
subject  to  the  following  provisions: 

First — The  capital  stock  of  a  corporation  may  be  in- 
creased or  diminished  at  a  meeting  of  the  stockholders  by 
a  vote  representing  at  least  two  thirds  of  the  subscribed 
or  issued  capital  stock,  or  in  the  manner  otherwise  in  this 
section  provided;  when  by  meeting  as  aforesaid,  then  such 
meeting  must  be  called  by  the  board  of  directors  or  trustees 
and  notice  must  be  given  by  publication  in  a  newspaper 
published  in  the  county  or  city  and  county  where  the  prin- 
cipal place  of  business  of  such  corporation  is  located,  or 
if  there  be  none  published  in  said  county  or  city  and  county, 
then  in  a  newspaper  published  in  an  adjoining  county, 
or  city  and  county,  such  paper  to  be  designated  by  the 
board  of  directors  or  trustees  in  the  order  calling  for  the 
meeting. 

Second — The  notice  must  specify  the  object  of  the  meet- 
ing and  the  amount  to  which  it  is  proposed  to  increase  or 
diminish  the  capital  stock,  the  time  and  place  of  holding 
the  meeting,  which  latter  must  be  at  the  principal  place 
of  business  of  the  corporation  and  at  the  building  where 
the  board  of  directors  or  trustees  usually  meet.  The  notice 
herein  provided  must  be  published  once  a  week  for  at  least 
sixty  days.  The  capital  stock  can  not  be  diminished  to 
an  amount  less  than  the  indebtedness  of  the  corporation. 

Third — The  bonded  indebtedness  of  a  corporation  may 
be  created  or  increased  by  a  vote  of  the  stockholders 
representing  at  least  two  thirds  of  the  subscribed  or  issued 
capital  stock  at  a  meeting  called  by  the  board  of  directors 
or  trustees,  and  after  notice  of  the  time  and  place  of  the 
meeting  published  in  the  same  manner  and  for  the  time 
prescribed,  which  notice  shall  state  the  amount  of  the 
bonded  indebtedness  which  it  is  proposed  to  create,  or  the 
amount  to  which  it  is  proposed  to  increase  such  indebted- 
ness, and  shall  in  all  other  respects  contain  the  same 
matters  as  are  above  provided  and  set  forth  in  the  notice 
of  meeting  to  increase  or  diminish  the  capital  stock;  or 
such  original  creation  of  bonded  indebtedness  may  be  made 
as  otherwise  in  this  section  provided.  . 


§  359  CORPORATE    POWERS.  112 

Fourth — In  addition  to  the  notice  by  publication,  when 
proceedings  are  to  be  had  hereunder  at  a  meeting  of  stock- 
holders, the  secretary  of  the  corporation  shall  also  address 
a  notice  to  each  of  the  stockholders  whose  names  appear 
on  the  company's  books  as  sufficiently  addressed  or  iden- 
tified, at  his  place  of  residence,  if  known,  and  if  not  known, 
then  at  the  place  in  which  the  principal  place  of  business 
of  the  corporation  is  situate,  which  notice  shall  be  so 
mailed  to  such  stockholders  at  least  thirty  days  before  the 
day  appointed  for  such  meeting. 

Fifth — In  lieu  of  such  call  for  meeting  of  stockholders 
and  of  such  notice  and  publication  of  the  same  and  of  a 
stockholders'  meeting  held  in  pursuance  thereof  and  of 
said  vote  thereat  representing  at  least  two  thirds  of  the 
subscribed  capital  stock,  any  corporation  may  diminish  its 
capital  stock  and  also  originally  create  its  bonded  indebted- 
ness by  a  resolution  adopted  by  the  unanimous  vote  of  its 
board  of  directors  or  trustees  at  a  regular  meeting  or  at  a 
special  meeting  called  for  that  purpose  and  approved  by 
the  written  assent  or  assents  of  the  stockholders  holding 
two  thirds  of  the  subscribed  or  issued  capital  stock,  which 
assent  or  assents  must  be  filed  with  the  secretary  of  the 
corporation;  but  the  secretary  of  the  coi'poration  must  ad- 
dress by  mail,  postage  fully  prepaid,  a  copy  of  such  resolu- 
tion to  each  of  the  stockholders  whose  names  appear  upon 
the  company's  books  as  sufficiently  addressed  or  identified, 
at  his  place  of  residence,  if  known,  and  if  not  known,  then 
at  the  place  in  which  the  principal  place  of  business  of  the 
corporation  is  situate,  which  notice  shall  be  so  mailed  to 
such  stockholders  at  least  thirty  days  before  the  certificate 
hereinafter  provided  is  made  and  signed  or  file  [d]  as  here- 
inafter provided,  and  within  that  time  any  stockholder  may 
file  with  such  secretary  his  dissent  in  writing;  but  it  is 
further  provided  that  if  at  any  time  within  said  thirty  days 
such  written  assent  or  assents  of  the  stockholders  holding 
all  of  the  subscribed  or  issued  capital  stock  be  so  filed 
with  said  secretary,  then  and  at  once  and  without  further 
delay  the  certificate  hereinafter  provided  for  may  be  so 
made,  signed  and  filed  as  hereinafter  provided  and  with 
the  same  effect,  but  such  capital  stock  cannot  be  dimin- 
ished to  an  amount  less  than  the  indebtedness  of  the 
corporation,  and  no  increase  of  capital   stock  or   bonded 


113  CORPORATE    POWERS.  §  359 

indebtedness  can  be  made,  except  at  a  meeting  of  stock- 
holders as  iu  tliis  section  provided. 

Sixth. — Any  two  or  more  corporations  may  by  a  separate 
compliance  by  each  corporation  with  the  provisions  of  this 
section  applicable  in  the  premises  in  respect  to  creating  or 
increasing  bonded  indebtedness,  create  or  increase  a  con- 
solidated bonded  indebtedness  of  such  corporations,  to  be 
binding  jointly  and  severally  on  such  corporations,  and 
v.'hich  may  be  secured  by  a  consolidated  mortgage  or  deed 
of  trust  executed  by  all  such  corporations,  mortgaging  or 
conveying  in  trust  all  or  any  of  the  properties  of  all  such 
corporations,  acquired  or  to  be  acquired. 

Seventh — Upon  such  increase  or  diminution  of  the  capital 
stock  or  creation  or  increase  of  the  bonded  indebtedness 
Iseing  made  in  accordance  with  the  provisions  of  this  sec- 
tion there  shall  be  made,  if  proceedings  are  had  under 
subdivisions  first,  second,  third  and  fourth  above,  a  certifi- 
cate under  the  corporate  seal  and  signed  by  the  president 
and  secretary  of  the  corporation  or  of  each  corporation 
acting  in  the  premises  and  a  majority  of  the  directors  or 
trustees  of  such  corporation,  or  each  corporation  so  acting, 
showing  a  compliance  by  such  corporation,  or  each  cor- 
poration so  acting,  with  the  requirements  of  said  last 
named  subdivisions  and  the  amount  to  which  the  capital 
stock  has  been  increased  or  diminished  or  the  amount  of 
the  bonded  indebtedness  created,  or  to  which  the  bonded 
indebtedness  may  have  been  increased,  and  the  amount  o£ 
stock  represented  at  the  meeting  and  the  total  vote  in  the 
affirmative  by  which  the  same  was  accomplished  and  the 
total  vote  in  the  negative;  or  if  such  proceedings  be  had 
and  taken  under  subdivision  fifth  of  this  section  as  to 
diminution  of  capital  stock  or  original  creation  of  bonded 
indebtedness  a  like  certificate  shall  be  made  and  sealed 
and  signed,  as  aforesaid,  showing  a  compliance  by  such 
corporation,  and  by  each  corporation  acting  in  the  premises, 
with  the  requirements  of  said  subdivision  fifth,  and  the 
amount  to  which  the  capital  stock  has  been  diiiiinished  or 
the  amount  of  bonded  indebtedness  so  originally  created, 
and  the  total  amount  of  the  stock  represented  by  the  said 
written  assent  or  assents  so  filed  with  the  secretary  and 
the  total  amount  of  stock  represented  by  the  said  written 
dissent  or  dissents  so  filed.    In  case  of  a  consolidated  bonded 


§  3G0  CORPORATE     POWERS.  114 

indebtedness  each  corporation  which  is  a  party  thereto 
shall  cause  to  be  made  and  sealed  and  signed  and  veritied 
and  filed,  as  in  this  section  provided,  a  separate  certificate. 

Eighth — In  all  cases  the  certificate  shall  state  the  total 
number  of  subscribed  or  issued  shares  of  the  capital  stock 
of  the  corporatiou,  gr  of  each  corporation  respectively 
acting  in  the  premises,  and  shall  be  verified  by  the  oath 
of  the  said  president  and  secretary,  or  of  the  said  respec- 
tive presidents  and  secretaries.  Such  consolidated  bonded 
indebtedness  may  be  created  or  increased  to  an  amount 
equal  to  the  par  or  face  value  of  the  aggregate  amount  of 
the  subscribed  or  issued  capital  stocks  of  said  two  or  more 
corporations,  but  shall  not  exceed  such  aggregate  amount. 
In  each  and  every  case  the  certificate  must  be  filed  in  the 
ofiice  of  the  clerk  in  the  county  or  city  and  county  where 
the  original  articles  of  incorporation  of  the  corporation  or 
corporations  acting  hereunder  are  filed  and  a  certified  copy 
thereof,  certified  by  such  clerk,  shall  be  filed  in  the  oflB.ce 
of  the  secretary  of  state:  and  thereupon  the  capital  stock 
shall  be  so  increased  or  diminished,  or  the  bonded  indebted- 
ness or  consolidated  bonded  indebtedness  shall  be  created 
or  increased  accordingly,  and  such  certificate  or  certificates 
so  filed  shall  be,  when  said  certified  copy  or  copies  are  so 
filed,  conclusive  proof  of  such  increase  or  diminution  of 
capital  stock  or  such  creation  or  increase  of  bonded  or 
consolidated  bonded  indebtedness  and  the  validity  of  each 
thereof.  When  the  by-laws  of  a  corporation  prescribe  the 
paper  in  which  notices  of  meetings  of  directors  or  trustees 
or  stockholders  are  to  be  published  the  notices  of  publica- 
tion herein  provided  for  shall  be  published  in  such  paper, 
unless  publication  thereof  shall  have  ceased.  En.  March 
21,  1872.  Am'd.  1873-4,  207;  1883,  31;  1885,  141;  1889,  364; 
1893,  191;   1903,  347. 

Cal.Rep.Cit.  56,  651;  56,  653;  65,  617;  96,  161;  103,  630; 
109,  594;  109,  597;  109,  600;  112,  213;  116,  424;  125,  454; 
135,  583. 

§  360.  Corporations  may  acquire  real  property,  and  how 
much.  No  corporation  shall  acquire  or  hold  any  more  real 
property  than  may  be  reasonably  necessary  for  the  tran- 
saction of  its  business,  or  the  construction  of  its  wofks, 
except  as  otherwise  specially  provided.  A  corporation 
may  acquire  real  property,  as  provided  in  title  VII,  part 


115  CORPORATE    POWERS.  §  361 

III,  Code  of  Civil  Procedure,  when  needed  for  any  of  the 
uses  and  purposes  mentioned  in  said  title.  En.  March  21, 
1872.    Am'd.  1873-4,  208. 

Power  of  insurance  corporations  to  acquire  land:  See 
post,  sec.  415. 

Power  of  railroad  corporation  to  acquire  land:  See 
post,  sec.  465. 

§361.  Consolidation  of  mining  corporations  owning  ad- 
joining claims.  It  shall  he  lawful  for  two  or  more  corpora- 
tions formed,  or  that  may  hereafter  be  formed,  under  the 
laws  of  this  state,  for  mining  purposes,  which  own  or 
possess  mining  claims  or  lands  adjoining  each  other,  or 
lying  in  the  same  vicinity,  to  consolidate  their  capital 
stock,  debts,  property,  assets  and  franchises,  in  such 
manner  and  upon  such  terms  as  may  be  agreed  upon  by 
the  respective  boards  of  directors  or  trustees  of  such  com- 
panies so  desiring  to  consolidate  their  interests;  but  no 
such  consolidation  shall  take  place  without  the  written 
consent  of  the  stockholders  representing  two  thirds  of  the 
capital  stock  of  each  company;  and  no  such  consolidation 
shall,  in  any  way,  relieve  such  companies,  or  the  stock- 
holders thereof,  from  any  and  all  just  liabilities;  and  in 
case  of  such  consolidation,  due  notice  of  the  same  shall  be 
given,  by  advertising,  for  one  month,  in  at  least  one  news- 
paper in  the  county  and  state  where  the  said  mining  prop- 
erty is  situated,  if  there  be  one  published  therein  and  also 
in  one  newspaper  published  in  the  county,  or  city  and 
county,  where  the  principal  place  of  business  of  any  of  said 
companies  shall  be.  And  when  the  said  consolidation  is 
completed,  a  certificate  thereof,  containing  the  manner  and 
terms  of  said  consolidation,  shall  be  filed  in  the  office  of 
the  county  clerk  of  the  county  in  which  the  original  cer- 
tificate of  incorporation  of  any  of  said  companies  shall  be 
filed,  and  a  copy  thereof  shall  be  filed  in  the  office  of  the 
secretary  of  state.  Such  certificate  shall  be  signed  by  a 
majority  of  each  board  of  trustees  or  directors  of  the 
original  companies;  and  it  shall  be  their  duty  to  call,  within 
thirty  days  after  the  filing  of  such  certificate,  and  after  at 
least  ten  days'  public  notice,  a  meeting  of  the  stockholders 
of  all  of  said  companies  so  consolidated,  tcr  elect  a  board 
of  trustees  or  directors  for  the  consolidated  company,  for 


§§  361a,  362  CORPORATE    POWERS.  116 

the  year  thence  next  ensuing.  The  said  certificate  shall 
also  contain  all  the  requirements  prescribed  by  section 
two  hundred  and  ninety  of  said  Civil  Code. 

This  act  shall  apply  to  all  corporations  formed  under 
the  laws  of  this  state,  whether  formed  under  the  said  Civil 
Code  or  prior  thereto.     En.  Stats.  1875-6,  75. 

§  361a.  Transfer  of  franchise  not  valid  without  consent 
of  stockholders.  No  sale,  lease,  assignment,  transfer  or  con- 
veyance of  the  business,  franchise  and  property,  as  a  whole, 
of  any  corporation  now  existing,  or  hereafter  to  be  formed 
in  this  state,  shall  be  valid  without  the  consent  of  stock- 
holders thereof,  holding  of  record  at  least  two  thirds  of 
the  issued  capital  stock  of  such  corporation;  such  consent 
to  be  either  expressed  in  writing,  executed  and  acknowl- 
edged by  such  stockholders,  and  attached  to  such  sals, 
lease,  assignment,  transfer  or  conveyance,  or  by  vote 
at  a  stockholders'  meeting  of  such  corporation  called  for 
that  purpose,  but  with  such  assent,  so  expressed,  such  sale, 
lease,  assignment,  transfer  or  conveyance  shall  be  valid; 
provided,  however,  that  nothing  herein  contained  shall  be 
construed  to  limit  the  power  of  the  directors  of  such  cor- 
poration to  make  sales,  leases,  assignments,  transfers  or 
conveyances  of  corporate  property  other  than  those  herein- 
above set  forth.    En.  Stats.  1903,  396. 

§  362.  Amendment  of  articles  or  certificate  of  incorpora- 
tion. Any  corporation  may  amend  its  articles  of  incor- 
poraton  by  a  majority  vote  of  its  board  of  directors  or 
trustees,  and  by  a  vote  or  written  assent  of  the  stock- 
holders representing  at  least  two  thirds  of  the  subscribed 
capital  stock  of  such  corporation;  and  a  copy  of  the  said 
articles  of  incorporation,  as  thus  amended,  duly  certified 
to  be  correct  by  the  president  and  secretary  of  the  board 
of  directors  or  trustees  of  such  corporation,  shall  be  filed 
in  each  ofiice  where  the  original  articles  of  incorporation 
are,  or  any  copy  thereof  is,  required  by  this  code  to  be 
filed;  and  from  the  time  of  so  filing  such  copy  of  the 
amended  articles  of  incorporation,  such  corporation  shall 
have  the  same  powers,  and  it  and  the  stockholders  thereof 
shall  thereafter  be  subject  to  the  same  liabilities,  as  if  such 
amendment  had  been  embraced  in  the  original  articles  of 
incorporation;   provided,  that  the  time  of  the  existence  of 


117  CORPORATE     POWERS.  §§  3G3,  363 

Eucli  corporation  shall  not  be  by  such  amendment  extended 
beyond  the  time  fixed  in  the  original  articles  of  incorpora- 
tion; provided  further,  that  such  original  and  amended 
articles  of  incorporation  shall  together  contain  all  the 
matters  and  things  required  by  the  laws  under  which  the 
original  articles  of  incorporation  were  executed  and  filed; 
and,  also  provided,  that  if  the  assent  of  two  thirds  of  the 
said  stockholders  to  such  amendment  has  not  been  ob- 
tained, a  notice  of  the  intention  to  make  the  amendment 
shall  first  be  advertised  for  thirty  (30)  days  in  some  news- 
paper published  in  the  town,  city,  or  county,  or  city  and 
county,  in  which  the  principal  place  of  business  of  the 
corporation  is  located  before  the  filing  of  the  proposed 
amendment;  and  provided  also,  that  nothing  in  this  section 
shall  be  construed  to  authorize  any  corporation  to  diminish 
its  capital  stock.  En.  Stats.  1885,  91.  Am'd.  1893,  131; 
1903,  411. 

Cal.Rep.Cit.   99,  396;   124,  115. 

§  363.     Corporations   may   own   their   lots   and    buildings. 

By  a  unanimous  vote  of  all  the  directors  at  any  regular 
meeting,  any  corporation  existing  or  hereafter  to  be  formed 
under  the  laws  of  this  state  may  acquire  and  hold  the  lots 
and  building  on  and  in  which  its  business  is  carried  on,  and 
may  improve  the  same  to  any  extent  required  for  the  con- 
venient transaction  of  its  business.    En.  Stats.  1889,  67. 

This  section  superseded  an  act  authorizing  owning  of 
lots  and  building  whei'e  business  carried  on:  Stats.  1875-6, 
p.  653. 

§  363.  Correction  of  erroneous  filing  of  articles  of  in- 
corporation. When  articles  of  incorporation  have  been 
prepared,  subscribed,  and  executed  in  accordance  with  the 
provisions  of  sections  two  hundred  and  ninety  and  two 
hundred  and  ninety-two  of  the  Civil  Code,  and  such  ori- 
ginal articles  filed  by  error  or  inadvertence  with  the 
clerk  of  a  county  other  than  that  named  in  the  articles 
of  incorporation  as  the  county  in  which  the  principal 
place  of  business  is  to  be  transacted,  and  the  secretary 
of  state  shall  have  issued  a  certificate  of  incorporation 
based  on  a  certified  copy  of  such  original  articles  of  incor- 
poration, any  stockholder  or  director  of  siich  corporation 
may  petition  the   superior  court  of  the  county   in   which 


§  S64  CORPORATE     POWERS.  118 

said  original  articles  of  incorporation  were  filed  for  an 
order  to  withdraw  sucli  original  articles  of  incorporation, 
and  file  in  place  thereof  a  certified  copy  of  the  copy 
thereof  on  file  in  the  ofiTice  of  the  secretary  of  state.  Such 
petition  must  be  verified,  and  must  state  clearly  the  facts, 
showing  that  such  articles  of  incorporation  were  filed  by 
inadvertence  and  mistake;  and  notice  of  the  hearing  of 
said  petition  must  be  given  for  at  least  ten  days  before  the 
day  of  hearing,  by  publication  in  a  newspaper  published  in 
the  county  where  such  petition  is  filed.  Upon  the  day  set 
for  hearing  the  petition  the  superior  court  may  grant  an 
order  allowing  such  original  articles  of  incorporation  to  be 
withdrawn,  and  a  certified  copy  of  the  copy  in  the  ofl^ce 
of  the  secretary  of  state  in  the  place  thereof  filed;  and  the 
original  articles  of  incorporation  must  be  filed  within  ten 
days  thereafter  in  the  county  in  which  the  principal  place 
of  business  is  to  be  transacted,  as  stated  in  such  articles 
of  incorporation,  and  a  certified  copy  of  the  order  allowing 
such  action  must  be  filed  with  the  certified  copy  in  the 
office  of  the  secretary  of  state,  after  which  said  corporation 
shall  be  entitled  to  all  rights  and  privileges  of  a  private 
corporation,  and  the  title  to  any  property  it  may  have  pre- 
viously acquired  shall  not  be  aftected  by  reason  of  the 
failure  to  file  the  original  articles  of  incorporation  in  the 
first  instance.    En.  Stats.  1889,  332, 

§  364.  Corporations  may  transfer  foreign  concessions. 
Any  corporation  of  this  state  owning  grants,  concessions, 
franchises,  and  properties,  or  any  thereof,  in  any  foreign 
country,  may  sell  and  convey  the  same  to  the  government 
of  such  foreign  country,  or  to  any  person  or  persons,  or  any 
corporation  or  corporations,  or  association  or  associations, 
created  by  or  existing  under  the  laws  of  this  or  any  other 
state  or  the  United  States,  or  any  foreign  government; 
provided,  however,  that  the  powers  hereby  granted  shall 
only  be  exercised  by  a  majority  of  the  entire  board  of 
directors  of  such  corporation  of  this  state,  with  the  con- 
currence in  writing  of  the  holders  of  two  thirds  in  amount 
of  the  capital  stock  thereof.     En,  Stats.  1899,  95. 


119  CORPORATE    POWERS.  §§  377,  378 


ARTICLE    II. 

RECORDS. 

§  377.     Records — of  what,   and  how  kept. 

§  378.     Other    records    to    be    kept    by    corporations    for    profit,    and 
others. 

§  377.  Records — of  what,  and  how  kept.  All  corpora- 
tions for  profit  are  required  to  keep  a  record  of  all  their 
business  transactions;  a  journal  of  all  meetings  of  their 
directors,  members  or  stockholders,  with  the  time  and 
place  of  holding  the  same,  whether  regular  or  special,  and 
if  special,  its  object,  how  authorized,  and  the  notice  thereof 
given.  The  record  must  embrace  every  act  done  or  ordered 
to  be  done;  who  were  present,  and  who  absent;  and,  if 
requested  by,  any  director,  member,  or  stockholder,  the 
time  shall  be  noted  when  he  entered  the  meeting  or  ob- 
tained leave  of  absence  therefrom.  On  a  similar  request 
the  ayes  and  noes  must  be  taken  on  any  proposition,  and 
a  record  thereof  made.  On  similar  request,  the  protest  of 
any  director,  member  or  stockholder,  to  any  action  or 
proposed  action,  must  be  entered  in  full — all  such  records 
to  be  open  to  the  inspection  of  any  director,  member,  stock- 
holder, or  creditor  of  the  corporation.    En.  March  21,  1872. 

Cal.Rep.Cit.      63.  484;      76,     26;      78,  633;      94,  549;   107,  636; 
135,  625. 

Refusal  to  permit  inspection:    See  Pen.  Code,  sec.  565. 

§  378.  Other  records  to  be  kept  by  corporations  for 
profit,  and  others.  In  addition  to  the  records  required  to 
be  kept  by  the  preceding  section,  corporations  for  profit 
must  keep  a  book,  to  be  known  as  the  "Stock  and  Transfer 
Book,"  in  which  must  be  kept  a  record  of  all  stock;  the 
names  of  the  stockholders  or  members,  alphabetically 
arranged;  installments  paid  or  unpaid;  assessments  levied 
and  paid  or  unpaid;  a  statement  of  every  alienation,  sale, 
or  transfer  of  stock  made,  the  date  thereof,  and  by  and  to 
whom;  and  all  such  other  records  as  the  by-laws  prescribe. 
Corporations  for  religious  and  benevolent  purposes  must 
provide  in  their  by-laws  for  such  records  to  be  kept  as 
may  be  necessary.     Such  stock  and  transfer  book  must  be 


J§  3S2.  383  CORPORATE    POWERS.  120 

kept  open  to  the  inspection  of  any  stockholder,  member,  or 
creditor.    En.  March  21,  1872. 

Cal.Rep.Cit.  101,  148;   107,  453;   107,  63G. 

See  acts  concerning  statements  by  banks  and  bankers. 
Appendix,  title  Banks  and  Banking. 


ARTICLE    III. 

EXAMINATION    OF    CORPORATIONS,    ETC. 

§  382.     Examination    into     affairs    of     corporation,     how    made    by 

officers  of  state. 
§  383.     Examination  made  by  the  legislature. 
§  384.     Chapter  and  article  may  be  repealed. 

§  382.  Examination  into  affairs  of  corporation,  how 
made  by  officers  of  state.  The  attorney-general  or  district 
attorney,  whenever  and  as  often  as  required  by  the  gov- 
ernor, must  examine  into  the  affairs  and  condition  of  any 
corporation  in  this  state,  and  report  such  examination,  in 
writing,  together  with  a  detailed  statement  of  facts,  to  the 
governor,  who  must  lay  the  same  before  the  legislature; 
and  for  that  purpose  the  attorney-general  or  district 
attorney  may  administer  all  necessary  oaths  to  the  di- 
rectors and  officers  of  any  corporation,  and  may  examine 
them  on  oath  in  relation  to  the  affairs  and  condition 
thereof,  and  may  examine  the  books,  papers  and  docuraents 
belonging  to  such  corporation,  or  appertaining  to  its  affairs 
qnd  condition.     En.  March  21,  1872. 

Cal.Rep.Cit.   72,  23;   110,  460. 

Permitting  inspection  of  books:    See  Pen.  Code,  sec.  565. 

§383.  Examination  made  by  the  legislature.  The  legis- 
lature, or  either  branch  thereof,  may  examine  into  the 
affairs  and  condition  of  any  corporation  in  this  state  at  all 
times;  and,  for  that  purpose,  any  committee  appointed  by 
the  legislature,  or  either  branch  thereof,  may  administer 
all  necessary  oaths  to  the  directors,  officers,  and  stock- 
holders of  such  corporation,  and  may  examine  them  on  oath 
in  relation  to  the  affairs  and  condition  thereof;  and  may 
examine  the  safes,  books,  papers,  and  documents  belong- 
ing to  such  corporation,  or  pertaining  to  its  affairs  and  con- 
dition, and  compel  the  production  of  all  keys,  books,  papers, 
and  documents  by  summary  process,  to  be  issued  on  appli- 


121  CORPORATE     POWERS.  §  384 

cation  to  any  court  of  record  or  any  judge  thereof,  under 
such  rules  and  regulations  as  the  court  may  prescribe.  En. 
March  21,  1872. 

Permitting  inspection  of  books:    See  Pen.  Code,  sec.  565. 

§  384.  Chapter  and  article  may  be  repealed.  The  legis- 
lature may  at  any  time  amend  or  repeal  this  part,  or  any 
title,  chapter,  article,  or  section  thereof,  and  dissolve  all 
corporations  created  thereunder;  but  such  amendment  or 
repeal  does  not,  nor  does  the  dissolution  of  any  such 
corporation,  take  away  or  impair  any  remedy  given  against 
any  such  corporation,  its  stockholders,  or  officers,  for  any 
liability  which  has  been  previously  incurred.  En.  March 
21,  1872. 

Note — In  the  constitution  of  California,  in  force  when 
this  code  was  adopted,  was  the  following  section:  "Cor- 
porations may  be  formed  under  general  laws,  but  shall 
hot  be  created  by  special  act  except  for  municipal  pui-poses. 
All  general  laws  and  special  acts  passed  pursuant  to  this 
section  may  be  altered  from  time  to  time  or  repealed": 
Art.  IV,  sec.  31.  The  constitution  of  1879,  art.  XII,  sec. 
1,  preserves  this  section  in  the  following  language:  "Cor- 
porations may  be  formed  under  general  laws,  but  shall  not 
be  created  by  special  act.  All  laws  now  in  force  in  this 
state  concerning  corporations,  and  all  laws  that  may  be 
hereafter  passed  pursuant  to  this  section  may  be  altered 
from  time  to  time  or  repealed."  The  code  commissioners 
quote  the  section  from  the  former  constitution  and  say: 
"Section  384  was  inserted  in  this  code  out  of  an  abund- 
ance of  caution,  and  not  because  it  was  deemed  necessary, 
for  there  can.  be  but  little  doubt  that  the  constitutional 
provision  quoted  at  the  head  of  this  note  enters  into  and 
becomes  a  part  of  the  contract,  thereby  reserving  to  the 
legislature  the  right  to  repeal,  impair,  or  alter  any  law 
relative  to  the  formation  of  corporations,  even  though 
the  result  reached  would  be  the  dissolution  of  every  cor- 
poration organized  within  the  state." 


Civ.  Code— 6 


§§388-391  CORPORATE    POWERS.  122 

ARTICLE    IV. 

JUDGMENT   AGAINST    AND    SALE   OP   CORPORATE    PROPERTY. 

§  388.  Franchise    may    be    treated    as    property,    and    sold    under 

execution. 

§  389.  Purctiaser   to   transact   business   of   corporation. 

§  390.  Purchaser  may  lecover  penalties,   etc. 

§  391.  Corporation  to   retain   powers  after   sale. 

§  392.  Redemption  of  franchise. 

§  393.  Sale  where  made. 

§  388.  Franchise  may  be  treated  as  property,  and  sold 
under  execution.  For  the  satisfaction  of  any  judgment 
against  any  person,  company,  or  corporation  auttiorized 
to  receive  tolls,  the  franchise,  and  all  the  rights  and 
privileges  thereof,  may  be  levied  upon  and  sold  under 
execution,  in  the  same  manner,  and  with  the  same  effect, 
as  any  other  property.  En.  March  21,  1872.  Am'd.  1873-4, 
208;  1897,  16. 

Cal.Rep.Cit.  69,  458;     80,  341;   86,  2S3  ;   98,  313. 

Seizure  on  execution:     See  Code  Civ.  Proc,  sec.  688. 

§  389.     Purchaser    to   transact    business    of    corporation. 

The  purchaser  at  the  sale  must  receive  a  ceruficate  of 
purchase  of  the  franchise,  and  be  immediately  let  into 
the  possession  of  all  property  necessary  for  the  exercise  of 
the  powers  and  the  receipt  of  the  proceeds  thereof,  and 
must  threafter  conduct  the  business  of  such  corporation, 
with  all  its  powers  and  privileges,  and  subject  to  all  its 
liabilities  until  the  redemption  of  the  same,  as  hereinafter 
provided.    En.  March  21,  1872. 

§  390.  Purchaser  may  recover  penalties,  etc.  The  pur- 
chaser or  his  assignee  is  entitled  to  recover  any  penalties 
imposed  by  law  and  i-ecoverable  by  the  corporation  for  an 
injury  to  the  franchise  or  property  thereof,  or  for  any  dam- 
ages or  other  cause,  occurring  during  the  time  he  holds 
the  same,  and  may  use  the  name  of  the  corporation  for 
the  purpose  of  any  action  necessary  to  recover  the  same. 
A  recovery  for  damages  or  any  penalties  thus  had  is  a  bar 
to  any  subsequent  action  by  or  on  behalf  of  the  corpora- 
tion for  the  same.    En.  March  21,  1872. 

§  391.     Corporation    to    retain    powers    after    sale.     The 

corporation  whose  franchise  is  sold,  as  in  this  article  pro- 


123  EXTENSION,  ETC.,  OF  CORPORATIONS.  §§  392-399 

vided,  in  all  other  respects  retains  the  same  powers,  is 
bound  to  the  discharge  of  the  same  duties,  ana  is  liable 
to  the  same  penalties  and  forfeitures,  as  before  such  sale. 
En.  March  21,  1872. 

§392.  Redemption  of  franchise.  The  corporation  may, 
at  any  time  within  one  year  after  such  sale,  redeem  the 
franchise,  by  paying  or  tendering  to  the  purchaser  thereof 
the  sum  paid  therefor,  with  ten  per  cent  interest  tnereon, 
but  without  any  allowance  for  the  toll  which  he  may  in 
the  mean  time  have  received;  and  upon  such  payment  or 
tender  the  franchise  and  all  the  rights  and  privileges 
thereof  revert  and  belong  to  the  corporation,  as  if  no  such 
sale  had  been  made.     En.  March  21,  1872. 

Cal.Rep.Cit.  132,  535. 

§  393.  Sale  where  made.  The  sale  of  any  franchise  un- 
der execution  must  be  made  in  the  county  in  which  the 
corporation  has  its  principal  place  of  business,  or  in  which 
the  property,  or  some  portion  thereof,  upon  which  the  tax;es 
are  paid,  is  situated.  En.  March  21,  1872.  Am'd.  1873-4, 
209. 


CHAPTER    IV. 

EXTENSION    AND    DISSOLUTION    OF    CORPORATIONS. 

§  399.     Proceedings  to  disincorporate. 

§  400.     On  dissolution,  directors  to  be  trustees  for  creditors. 
§  401.      Extension  of  term. 

§  402.     How     corporations     may     continue    their     existence.        (Re- 
pealed.) 
§   403.      Title  I  to  apply  to  all  corporations,  with  certain  exceptions. 

§  399.  Proceedings  to  disincorporate.  The  dissolution 
of   corporations  is   provided  for: 

1.  If  involuntary — in  chapter  V  of  title  X,  part  II,  of  the 
Code  of  Civil  Procedure; 

2.  If  voluntary— In  title  VI,  part  III,  of  the  Code  of  Civil 
Procedure.     En.  March  21,  1872. 

Cal.Rep.Cit.   84,  365;    84,  366;    84,  367;   108,  436. 

Involuntary  dissolution:  See  Code  Civ.  Proc,  sees.  227, 
802. 

Voluntary  dissolution:  See  Code  Civ.  Proc,  sees.  1227- 
1233. 


85  400-403  EXTENSION,   ETC.,   OF   CORPORATIONS.  124 

Act  providing  for  dissolution  of  savings  banks,  trust 
companies  and  banlis  of  deposit:  See  post,  Appendix, 
title  Banks  and  Banking. 

§400.  On  dissolution,  directors  to  be  trustees  for  cred- 
itors. Unless  other  persons  are  appointed  by  the  court, 
the  directors  or  managers  of  the  affairs  of  such  corpora- 
tion at  the  time  of  its  dissolution  are  trustees  ol  the  cred- 
itors and  stockholders  or  members  of  the  corporation 
dissolved,  and  have  full  povi'er  to  settle  the  affairs  of  the 
corporation.     En.  March  21,  1872. 

Cal.Rep.Cit.      84,  358  ;      84,  3G5  ;      84,  366  ;      84,  367  ;      84,  369  ; 
84,  370;      84,  374;      84,  380;    100,  119;    101,  147;   101,  148; 
101,  149. 

§401.  Extension  of  term.  Every  corporation  formed 
for  a  period  less  than  fifty  years  may,  at  any  time  prior 
to  the  expiration  of  the  term  of  its  corporate  existence, 
extend  such  term  to  a  period  not  exceeding  fifty  years 
from  its  formation.  Such  extension  may  be  made  at  any 
meeting  of  the  stockholders  or  members,  called  by  the  di- 
rectors expressly  for  considering  the  subject  if  voted  by 
stockholders  representing  two  thirds  of  the  capital  stock; 
or  by  two  thirds  of  the  members,  or  may  be  made  upon 
the  written  assent  of  that  number  of  stockholders  or  mem- 
bers. A  certificate  of  the  proceedings  of  the  meeting  upon 
such  vote,  or  upon  such  assent,  shall  be  signed  by  the 
chairman  and  secretary  of  the  meeting  and  a  majority  of 
the  directors,  and  be  filed  in  the  office  of  the  county  clerk, 
where  the  original  articles  of  incorporation  were  filed,  and 
a  certified  copy  thereof  in  the  office  of  the  secretary  of 
state,  and  thereupon  the  term  of  the  corporation  shall  be 
extended  for  the  specified  period.  En.  March  21,  1872. 
Am'd.  1873-4,  209. 

Cal.Rep.Cit.   109,  582;   122,  339. 

§  402.     How  corporations   may  continue  their  existence. 
(Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  209. 
Cal.Rep.Cit.   122,  336  ;   122,  339. 

§403.  Title  I  to  apply  to  all  corporations,  with  certain 
exceptions.  The  provisions  of  this  title  are  applicable  to 
every  corporation,  unless  such  corporation  is  excepted  from 
its  operation,  or  unless  a  special  provision  is  made  in  rela- 


125  GENERAL    PROVISIONS.  §§  414,  415 

tion  thereto  inconsistent  with  some  provision  in  this  title, 
in  which  case  the  special  provision  prevails.  En.  March 
21,  1872. 

Cal.Rep.Cit.  109,  582;   122,  339. 


TITLE    11. 

INSURANCE    CORPORATIONS. 

Chapter  I.     General  Provisions,  §§  414-420. 

II.     Fire,  Marine  and  Title  Insurance  Corporations, 

§§  424-432. 
III.    Mutual  Life,  Health,  and  Accident  Insurance 
Corporations,   §§  437-452. 

CHAPTER    I. 

GENERAL    PROVISIONS. 

S  414.  Subscriptions  to  capital  stock  opened,  and  how  collected. 

§  415.  Purchase   and   conveyance   of   real   estate. 

§  416.  Policies,  how  issued  and  by  whom  signed. 

§  417.  Dividends,  of  what  and  wlien   declared. 

§  418.  Directors   liable  for  loss  on   insurance  in  certain"  cases. 

§   419.  Capital  to  be  at  least  two  hundred  thousand  dollars. 

§  420.  Exception,  capital  of  one  hundred  thousand  dollars. 

§  414.  Subscriptions  to  capital  stock  opened,  and  how 
collected.  After  the  secretary  of  state  issues  the  certifi- 
cate of  incorporation,  as  provided  in  article  I,  chapter  I, 
title  I,  of  this  part,  the  directors  named  in  the  articles,  of 
incorporation  must  proceed  in  the  manner  specified,  or  in 
their  by-laws,  or  if  none,  then  in  such  manner  as  they  may 
by  order  adopt,  to  open  books  of  subscription  to  the  cap- 
ital stock  then  unsubscribed,  and  to  secure  subscriptions 
to  the  full  amount  of  the  fixed  capital;  to  levy  assessments 
and  installments  thereon,  and  to  collect  the  same,  as  in 
chapter  II  of  title  I  provided.     En.  March  21,  1872. 

Insurance  in  general:     See  post,  sees.  2527-2766. 

§  415.  Purchase  and  conveyance  of  real  estate.  No  in- 
surance corporation  must  purchase,  hold,  or  convey  real 
estate,  except  as  hereinafter  set  forth,  to-wit: 

1.  Such  as  is  requisite  for  its  accommodation  in  the 
convenient  transaction  of  its  business,  not  exceediiig  in 
value  one  hundred  and  fifty  thousand  dollars; 


§§  416,  417  GENERAL    PROVISIONS.  128 

2.  Such  as  is  conveyed  to  it,  or  to  any  person  tor  it,  by 
way  of  mortgage  or  in  trust,  or  otherwise,  to  secure  or 
provide  for  the  payment  of  loans  previously  contracted,  or 
for  moneys  due; 

3.  Such  as  is  purchased  at  sales  upon  deeds  of  trust  or 
judgments  obtained  or  made  for  such  loans  or  debts; 

4.  Such  as  is  conveyed  to  it  in  satisfaction  of  debts 
previously  contracted  in  the  course  of  its  dealings. 

All  such  real  estate  so  acquired,  which  is  not  requisite 
for  the  accommodation  of  such  corporation  in  the  trans- 
action of  its  business,  must  be  sold  and  disposed  of  within 
five  years  after  such  corporation  acquired  title  to  the 
same.  No  such  real  estate  must  be  held  for  a  longer 
period  than  five  years,  unless  the  corporation  first  pro- 
cures a  certificate  from  the  insurance  commissioner  tliat 
the  interest  of  the  corporation  will  suffer  materially  by  a 
forced  sale  of  such  real  estate,  in  which  event  the  time  for 
the  sale  may  be  extended  to  such  time  as  the  insurance 
commissioner  directs  in  the  certificate.  En,  March  21, 
1872. 

§416.     Policies,   how   issued   and   by  whom    signed.     All 

policies  made  by  insurance  corporations  must  be  sub- 
scribed by  the  president  or  vice-president,  or  in  case  of 
the  death,  absence,  or  disability  of  those  officers,  by  any 
two  of  the  directors,  and  countersigned  by  the  secretary 
of  the  corporation.  All  such  policies  are  as  binding  and 
obligatory  upon  the  corporation  as  if  executed  over  the 
corporate  seal.    En.  March  21,  1872. 

§  417.  Dividends,  of  what  and  when  declared.  The  di- 
rectors of  every  insurance  corporation,  at  such  times  as 
their  by-laws  provide,  must  make,  declare,  and  pay  to  the 
stockholders  dividends  of  so  much  of  the  net  profits  of 
the  corporate  business  and  interest  on  capital  invested 
as  to  them  appears  advisable;  but  the  moneys  received 
and  notes  taken  for  premium  on  risks  which  are  undeter- 
mined and  outstanding  at  the  time  of  making  the  dividend 
must  not  be  treated  as  profits,  nor  divided,  except  as  pro- 
vided in  chapter  II  of  this  title.     En.  March  21,  1872. 

Declaring  dividends:    See  ante,  sec.  309. 


127  GENERAL    PROVISIONS.  §§  418-420 

§418.  Directors  liable  for  loss  on  insurance  in  certain 
cases.  If  any  insurance  corporation  is  under  liabilities  for 
losses  to  an  amount  equal  to  its  capital  stock,  and  the 
president  or  directors,  after  knowing  the  same,  make  any 
new  or  further  insurance,  the  estates  of  all  who  make 
such  insurance,  or  assent  thereto,  are  severally  and 
jointly  liable  for  the  amount  of  any  loss  which  takes  place 
under  such  insurance.    En.  March  21,  1872. 

§419.  Capital  to  be  at  least  two  hundred  thousand  dol- 
lars. Every  company,  corporation,  or  association  hereafter 
formed  or  organized  under  the  laws  of  this  state  for  the 
transaction  of  business  in  fire,  marine,  inland  navigation, 
or  life  Insurance,  must  have  a  subscribed  capital  stock 
equal  to  at  least  two  hundred  thousand  dollars,  twenty-five 
per  cent  of  which  must  be  paid  in  previous  to  the  issuance 
of  any  policy,  and  the  residue  T>'ithin  twelve  months  from 
the  day  of  filing  the  certificate  of  incorporation.  No  per- 
son, corporation,  or  association  organized  or  formed  under 
the  laws  of  any  other  state  or  country,  as  a  stock  company, 
must  transact  any  such  insurance  business  in  this  state, 
unless  such  person,  corporation,  or  association  has  a  paid- 
up  capital  stock  equal  to  at  least  two  hundred  thousand 
dollars  in  available  cash  assets,  over  and  above  all  liabili- 
ties for  losses  reported,  expenses,  taxes,  and  reinsurance 
of  all  outstanding  risks,  as  provided  in  section  six  hundred 
and  two  of  the  Political  Code  of  this  state.  Nor  must  any 
person,  corporation,  or  association,  organized  or  formed 
under  the  laws  of  any  other  state  or  country  as  a  mutual 
insurance  company,  transact  any  such  insurance  business 
in  this  state,  unless  such  person,  corporation,  or  associa- 
tion possesses  available  cash  assets  equal  to  at  least  two 
hundred  thousand  dollars,  over  and  above  all  liabilities  for 
losses  reported,  expenses,  taxes,  and  reinsurance  of  all 
outstanding  risks,  as  provided  in  said  section  six  hundred 
and  two  of  the  Political  Code  of  this  state.  En.  March  21, 
1872.     Am'd.  1873-4,   269;    1877-8,   80. 

Cal.Rep.Cit.  64,  52. 

§  420.  Exception,  capital  of  one  hundred  thousand  dol- 
lars. Every  company,  corporation,  or  association,  here- 
after formed  or  organized  under  the  laws  of  this  state  for 
the  transaction  of  business  in  any  kind  of  insurance  not 


j424  FIRE,    ETC.,    INSURANCE    CORPORATIONS.  128 

enumerated  in  section  four  hundred  and  nineteen  of  the 
Civil  Code  must  have  a  subscribed  capital  stock  equal 
to  at  least  one  hundred  thousand  dollars,  which  must  be 
paid  in  at  the  times  and  in  the  manner  prescribed  for  the 
payment  of  the  capital  stock  of  a  corporation  organized 
under  section  four  hundred  and  nineteen  of  said  Civil  Code. 
No  company,  corporation,  or  association,  formed  or  or- 
ganized under  the  laws  of  any  other  state  or  country  as 
a  stock  company,  must  transact  any  such  insurance  busi- 
ness in  this  state  without  a  paid-up  capital  stock  of.  not 
less  than  one  hundred  thousand  dollars  in  available  cash 
assets,  over  and  above  all  liabilities  for  losses  reported, 
expenses,  taxes,  and  reinsurance  of  all  outstanding  risks, 
as  provided  in  section  six  hundred  and  two  of  the  Political 
Code  of  this  state.  Nor  must  any  company,  corporation, 
or  association,  formed  or  organized  under  the  laws  of  any 
other  state  or  country  as  a  mutual  insurance  company, 
transact  any  such  insurance  business  in  this  state  unless 
such  company,  corporation,  or  association  possesses  avail- 
able cash  assets  equal  to  at  least  one  hundred  thousand 
dollars  over  and  above  all  liabilities  for  losses  reported, 
expenses,  taxes,  and  reinsurance  of  all  outstanding  risks, 
as  provided  in  said  section  six  hundred  and  two  of  the 
Political  Code  of  this  state.    En.  Stats.  1877-8,  80. 


CHAPTER    11.  . 

FIRE,    MARINE,    AND    TITLE    INSURANCE    CORPORATIONS. 

§  424.  Payment  of  subscriptions.     Capital  to  be  all  paid  in  twelv* 

months. 

§  425.  Certificate  of  capital  stock  paid  up  to  be  filed,  and  when. 

§  426.  Property  which  may  be  insured. 

I  427.  Funds  may  be  invested,   how. 

I  428.  Limit  of  one  rislv. 

§  429.  Amounts  to  be  reserved   before  making  dividends. 

§  430.  Reservation   by   companies   with    less   than   $200,000   capital. 

§  431.  Amounts  to  be  reserved  by   life  insurance  companies. 

§  432.  Corporations  for  insuring  titles  to  real  estate. 

§  424.  Payment  of  subscriptions.  Capital  to  be  all  paid 
in  twelve  montlns.  The  entire  capital  stock  of  every  fire 
or  marine  insurance  corporation  must  be  paid  up  in  cash 
within  twelve  months  from  the  filing  of  the  articles  of  in- 
corporation, and  no  policy  of  insurance  must  be  issued  or 


129  FIRE,   ETC.,   INSURANCE   CORPORATIONS.  §§  425-427 

risk  taken  until  twenty-five  per  cent  of  the  whole  capital 
stock  is  paid  up.     En.  March  21,  1872. 

Fire  insurance:     See  post,  sees.  2752  et  seq. 

Marine  insurance:     See  post,  sees.  2655  et  seq. 

County  fire  insurance  companies,  act  providing  for:  See 
post,  Appendix,  title  Insurance. 

§  425.  Certificate  of  capital  stock  paid  up  to  be  filed,  and 
when.  The  president  and  a  majority  of  the  directors  must 
within  thirty  days  after  the  payment  of  the  twenty-five  per 
cent  of  the  capital  stock,  and  also  within  thirty  days  after 
the  payment  of  the  last  installment  or  assessment  of  the 
capital  stock  limited  and  fixed,  prepare,  subscribe,  and 
swear  to  a  certificate  setting  forth  the  amount  of  the  fixed 
capital  and  the  amount  thereof  paid  up  at  the  times  re- 
spectively in  this  section  named,  and  file  the  same  in  the 
office  of  the  county  clerk  of  the  county  where  the  principal 
place  of  business  of  the  corporation  is  located,  and  a  dupli- 
cate thereof,  similarly  executed,  with  the  insurance  com- 
missioner.    En.  March  21,  1872. 

§426.  Property  which  may  be  insured.  Every  corpora- 
tion formed  for  fire  or  marine  insurance,  or  both,  may 
make  insurance  on  all  insurable  interests  within  the  scope 
of  its  articles  of  incorporation,  and  may  cause  itself  to  be 
reinsured.     En.  March  21,  1872. 

Insurable  interest  defined:     See  post,  sec.  2546. 

§  427.  Funds  may  be  invested,  how.  Corporations  or- 
ganized subsequent  to  April  first,  eighteen  hundred  and 
seventy-eight,  under  the  laws  of  this  state,  for  the  trans- 
action of  business  in  any  kind  of  insurance,  may  invest 
their  capital  and  accumulations  in  the  following  named 
securities: 

1.  In  the  purchase  of  or  loans  upon  interest-bearing 
bonds  of  the  United  States  government. 

2.  In  the  purchase  of  or  loans  upon  interest-bearing 
bonds  of  any  of  the  states  of  the  United  States,  not  iu 
default  for  interest  on  such  bonds. 

3.  In  the  purchase  of  or  loans  upon  interest-bearing 
bonds  of  any  of  the  counties  and  incorporated  cities  and 
towns  of  the  states  of  California  and  Oregon,  not  in  default 
for  interest  on  such  bonds. 


1427  PIRE,    ETC.,    INSURANCE    CORPORATIONS.  130 

4.  In  loans  upon  unincumbered  real  property,  worth  at 
least  one  hundred  per  cent  more  than  the  amount  loaned; 
or  upon  merchandise  or  cereals  in  warehouse,  but  in  no 
instance  shall  such  loan  be  made  in  excess  of  seventy-five 
per  cent  of  the  security  taken. 

5.  Corporations  engaged  in  the  business  of  insuring 
titles  to  real  estate  may,  after  the  investment  of  one  hun- 
dred thousand  dollars  in  the  manner  provided  for  in  sub- 
divisions one,  two,  three,  and  four  of  this  section,  ipvest 
an  amount  not  exceeding  fifty  per  cent  of  their  subscribed 
capital  stock  in  the  preparation  or  purchase  of  the  ma- 
terials or  plant  necessary  to  enable  them  to  engage  in  such 
business;  and  such  material  or  plant  shall  be  deemed  an 
asset,  valued  at  the  actual  cost  thereof,  in  all  statements 
and  proceedings  required  by  law  for  the  ascertainment  and' 
determination  of  the  condition  of  such  corporations. 

6.  Corporations  organized  for  and  engaged  in  the  busi- 
ness of  fire  and  marine  insurance  may,  after  the  invest- 
ment of  two  hundred  thousand  dollars,  and  corporations 
formed  or  organized  for  the  transaction  of  business  in  any 
kind  of  insurance  not  enumerated  in  section  four  nundred 
and  nineteen  of  the  Civil  Code  may,  after  the  investment 
of  one  hundred  thousand  dollars  in  the  manner  provided  in 
subdivisions  one,  two,  three,  and  four  of  this  section,  in- 
vest the  balance  of  their  capital,  and  any  accumulations, 
in  interest-bearing  first  mortgage  bonds  of  any  corpora- 
tions (except  mining  companies),  not  in  default  of  interest, 
organized  and  carrying  on  business  under  the  laws  of  any 
state  of  the  United  States;  provided,  that  a  two-thirds  vote 
of  all  the  directors  of  such  corporations  shall  approve 
such  investment.  It  shall  be  the  duty  of  the  officers  of 
such  corporation  to  report  quarterly,  on  the  first  days  of 
January,  April,  July,  and  October  of  each  year,  to  the 
insurance  commissioner,  a  list  of  such  investments  so 
made  by  them;  and  the  insurance  commissioner  may,  if 
such  investments,  or  any  of  them,  seem  injudicious  to  him, 
require  the  sale  of  the  same.  But  no  investment  in  the 
securities  named  in  subdivisions  one,  two,  three,  and  six 
of  this  section,  must  be  made  in  an  amount  exceeding  the 
market  value  of  such  securities  at  the  date  of  such  invest- 
ment. En.  March  21,  1872.  Am'd.  1873-4,  210;  1877-8,  81; 
1887,  22;  1899,  66. 

Cal.Rep.Cit.  123.  203. 


131  FIRE,    ETC.,    INSURANCE    CORPORATIONS.  §§  428-430 

§428.  Limit  of  one  risk.  Fire  and  marine  insurance 
corporations  must  never  take,  on  any  one  risk,  wliether 
it  is  a  marine  insurance  or  an  insurance  against  fire,  a 
sum  exceeding  one-tenth  part  of  their  capital  actually  paid 
in,  and  intact  at  the  time  of  taking  such  risk,  without 
reinsuring  the  excess  above  one-tenth.  En.  March  21,  1872. 
Am'd.  1873-4,  210. 

§  429.     Amounts  to  be  reserved  before  making  dividends. 

No  corporation  formed  subsequent  to  April  first,  eighteen 
hundred  and  seventy-eight,  under  the  laws  of  this  state, 
and  transacting  fire,  marine,  inland  navigation  insurance 
business,  or  insurance  provided  for  by  section  four  hun- 
dred and  twenty  (420)  of  this  code,  except  insurance  of  the 
title  to  real  property,  must  make  any  dividends  except 
from  profits  remaining  on  hand  after  retaining  unim- 
paired: 

1.  The   entire   subscribed   capital   stock. 

2.  All  the  premiums  received  or  receivable  on  outstand- 
ing marine  or  inland  risks,  except  marine  time  risks. 

3.  A  fund  equa^  to  one  half  of  the  amount  of  all  pre- 
miums on  all  other  risks  not  terminated  at  the  time  of 
making  such  dividend. 

4.  A  sum  suflacient  to  pay  all  losses  reported  or  in 
course  of  settlement,  and  all  liabilities  for  expenses  and 
taxes.     En.  March  21,  1872.     Am'd.  1877-8,  81;    1887,  23. 

Declaring  dividends  generally:  See  ante,  sec.  309;  see 
also  ante,  sec.  417,  as  to  declaring  dividends  by  insurance 
companies  generally. 

§  430.  Reservation  by  companies  with  less  than  $200,000 
capital.  No  fire  or  marine  insurance  corporation,  with  a 
subscribed  capital  of  less  than  two  hundred  thousand  dol- 
lars, must  declare  any  dividends,  except  from  profits 
remaining  on  hand  after  reserving: 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital 
stock,  the  aggregate  sum  of  two  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstand- 
ing marine  or  inland  risks,  except  marine  time  risks; 

3.  A  fund  equal  to  one  half  the  amount  of  all  premiums 
on  fire  risks  and  marine  time  risks  not  terminated  at  the 
time  of  making  such  dividend; 


§§  -131.  432  FIRE,   ETC.,    INSURANCE   CORPORATIOXa.  132 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 
En.  March  21,  1872. 

Cal.Rep.Cit.   110,   460. 

Act  conferring  power  to  establish,  fire  patrol:  See  post, 
Appendix,  title  Fire  Patrol. 

§  431.  Amounts  to  be  reserved  by  life  insurance  com- 
psnies.  No  corporation  formed  under  the  laws  of  this 
state,  and  transacting  life  insurance  business,  must  make 
any  dividends,  except  from  profits  remaining  on  hand  after 
retaining  unimpaired — 

1.  The  entire  capital  stock. 

2.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 

3.  A  sum  sufficient  to  reinsure  all  outstanding  policies 
as  ascertained  and  determined  upon  the  basis  of  the 
American  experience  table  of  mortality,  and  interest  at 
the  rate  of  four  and  one  half  per  cent  per  annum.  En. 
1877-8,  81. 

Life  and  health  Insurance:     See  post,  sees.  2762  et  seq. 

§  432.     Corporations    for    insuring    titles    to    real    estate. 

Corporations  transacting  business  in  insuring  titles  to  real 
estate  shall  annually  set  apart  a  sum  equal  to  twenty-five 
per  cent  of  their  premiums  collected  during  the  year, 
which  sum  shall  be  allowed  to  accumulate  until  a  fund 
shall  have  been  created  amounting  to  ten  per  cent  of  the 
subscribed  capital  stock.  Such  fund  shall  be  maintained 
as  a  further  security  to  policy  holders,  and  shall  be  known 
as  the  surplus  fund;  and  if  at  any  time  such  fund  shall 
be  impaired  by  reason  of  a  loss,  the  am.ount  by  which  it 
may  be  impaired  shall  be  restored  in  the  manner  herein- 
above provided  for  its  accumulation.  The  reporting  of  a 
less  shall  be  deemed  an  impairment  of  such  fund  for  the 
purposes  of  this  section.  Such  corporation  must  not  make 
any  dividends  except  from  profits  remaining  on  hand  after 
retaining  unimpaired: 

1.  The  entire  subscribed  capital  stock. 

2.  The  amount  owing  to  the  surplus  fund,  under  the 
provisions  of  this  section. 


133  LIFE,    ETC.,    INSURANCE    CORPORATIONS.  §  437 

3.  A  sum  sufficient  to  pay  all  losses  reported,  or  in 
course  of  settlement,  which  shall  be  in  excess  of  the  sur- 
plus fund,  and  all  liabilities  for  expenses  and  taxes.  En.. 
1887,  23. 


CHAPTER    III. 

MUTUAL    LIFE,    HEALTH,    AND    ACCIDENT    INSURANCE    COR- 
PORATIONS. 

§  437.  Capital   stock.      Guarantee  fund. 

§  438.  Of  what  guarantee  fund  shall  consist. 

§   439.  What  constitutes,    and   deficiency   in   fixed   capital. 

§   440.  Declaration  of  fixed  capital  to  be  filed. 

§  441.  Guarantee  notes   and   interest,   how  disposed  of. 

§  442.  Insured  to   be  entitled  to  vote,   when. 

§   443.  Number  of  directors  may  be  altered,   how. 

§  444.  Investment  of  capital   stock. 

§  445.  Limitations  to  the  holding  of  stock  and  in  other  particulars 
may  be  provided  for  in   by-laws. 

§  446.  Premiums,   how   payable. 

§  447.  Insurance  corporations  to  furnish  data  to  insurance  com- 
missioner.    Employment  of  actuary. 

§  448.  No  stamp  required  on  accident   insurance  contract. 

§   449.  Valuation  of  policies,   retaliatory  provisions. 

§   450.  Policy  to  contain  what  provisions. 

§  451.  Fraternal  societies  exempt  from   insurance  laws. 

§  452.  Policies  continued  in  force.      (Repealed.) 

§  437.  Capital  stock.  Guarantee  fund.  Every  corpora- 
tion formed  for  the  purpose  of  mutual  insurance  on  the 
lives  or  health  of  persons,  or  against  accidents  to  persons 
for  life  or  any  fixed  period  of  time,  or  to  purchase  and  sell 
annuities,  must  have  a  capital  stock  of  not  less  than  one 
hundred  thousand  dollars.  It  must  not  make  any  insurance 
upon  any  risk  or  transact  any  other  business  as  a  corpora- 
tion until  its  capital  stock  is  fully  paid  up  in  cash,  nor 
until  it  has  also  obtained  a  fund,  to  be  known  as  a  "guar- 
antee fund,"  of  not  less  than  two  hundred  and  fifty  thou- 
sand dollars,  as  is  hereinafter  provided.  If  more  than 
the  requisite  amount  is  subscribed,  the  stock  must  be  dis- 
tributed pro  rata  among  the  subscribers.  Any  subscrip- 
tion may  be  rejected  by  the  board  of  directors  or  the  com- 
mittee thereof,  either  as  to  the  whole  or  any  part  thereof, 
and  must  be,  so  far  as  rejected,  without  effect.  En.  March 
21,  1872. 

Cal.Rep.Cit.  121,  320;   121.  321;   121,  324. 

Act  relating  to  life,  health,  accident  and  annuity  or  en- 
dowment insurance:     See  post,  Appendix,  title  Insurance. 


§§438,439  LIFE.    ETC.,    INSURANCE    CORPORATIONS.  134 

Incorporation  of  mutual  insurance  companies:  See  post, 
Appendix,  title  Insurance. 

§  438.  Of  what  guarantee  fund  shall  consist.  The  guar- 
antee fund  raeutioned  in  the  preceding  section  must  con- 
sist of  the  promissory  notes  of  solvent  parties,  approved 
by  the  board  of  directors  and  by  each  other,  payable  to  the 
corporation  or  its  order,  and  at  such  times,  in  such  modes, 
and  in  such  sums,  with  or  without  interest,  and  conform- 
able in  all  other  respects  to  such  requirements  as  the 
board  of  directors  prescribe;  but  the  amount  of  the  notes 
given  by  any  one  person  must  not  exceed  in  the  whole  the 
slim  of  five  thousand  dollars,  exclusive  of  interest.  Such 
notes  must  be  payable  absolutely  and  at  the  option  of  the 
corporation;  they  must  be  negotiable,  and  may  be  indorsed 
and  transferred,  or  converted  into  cash,  or  otherwise  dealt 
with  by  the  corporation,  at  its  discretion,  without  refer- 
ence to  any  contingency  of  losses  or  expenses.  Such  notes, 
or  the  proceeds  thereof,  must  remain  with  the  corporation 
as  a  fund  for  the  better  security  of  persons  dealing  with  it, 
and  constitute  the  assets  of  the  corporation,  liable  for  all 
its  debts,  obligations,  and  indebtedness  next  after  its  assets 
from  premiums  and  other  sources,  exclusive  of  capital 
stock,  until  the  net  earnings,  over  and  above  its  expenses, 
losses,  and  liabilities,  shall  have  accumulated  in  cash, 
or  securities  in  which  the  net  earnings  have  been  invested, 
to  a  sum  which,  with  the  capital  stock,  is  equal  to  the  ag- 
gregate of  the  original  amounts  of  the  guarantee  fund  and 
of  the  capital  stock.     En.  March  21,  1872, 

§  439.     What  constitutes,  and  deficiency  in  fixed  capital. 

The  sum  accumulated  as  provided  in  the  preceding  sec- 
tion, together  with  the  capital  stock,  shall  become  and 
remain  the  fixed  capital  of  the  corporation,  not  subject  to 
division  among  the  stockholders  or  parties  dealing  with 
it,  or  to  be  expended  in  any  manner  otherwise  than  may 
be  required  in  payment  of  the  corporation's  aebts  and 
actual  expenses,  until  the  business  of  the  corporation  is 
closed,  its  debts  paid,  and  its  outstanding  policies  and 
obligations  of  every  kind  canceled  or  provided  for;  and  if 
from  any  cause  a  deficiency  at  any  time  occurs  in  such 
fixed  capital,  no  further  division  of  profits  must  take  place 


135  LIFE,    ETC.,    INSURANCE    COMPANIES.  §§  440-442 

until  such  deficiency  has  been  made  up.     En.  March  21, 
1872. 

§440.  Declaration  of  fixed  capital  to  be  filed.  When- 
ever the  tixed  capital  of  the  corporation  is  obtained  as 
hereinbefore  provided,  the  president  of  the  corporation  and 
its  actuary,  or  its  secretary,  if  there  is  no  actuary,  must 
make  a  declaration  in  writing,  sworn  to  before  some  notary 
public,  of  the  amount  of  such  fixed  capital  and  of  the  par- 
ticular kinds  of  property  composing  the  same,  with  the 
nature  and  amount  of  each  kind,  which  must  be  filed  with 
the  original  articles  of  incorporation,  and  a  copy,  certified 
by  the  county  clerk,  must  be  published  for  at  least  four 
successive  weeks,  in  a  newspaper  published  in  the  county 
where  the  principal  business  of  the  corporation  is  situated. 
Upon  the  filing  of  such  declaration  the  guarantee  fund  is 
discharged  of  its  obligations,  and  all  notes  of  the  fund  re- 
maining in  the  control  of  the  corporation,  and  not  affected 
by  any  lien  thereon,  or  claim  of  that  nature,  must  be  sur- 
rendered by  it  to  the  makers  thereof,  respectively,  or  other 
parties  entitled  to  receive  the  same.    En.  March  21,  1872. 

§441.  Guarantee  notes  and  interest,  how  disposed  of. 
Until  the  guarantee  fund  is  discharged  from  its  obliga- 
tions, as  provided  in  the  preceding  section,  no  note  must 
be  withdrawn  from  the  fund,  unless  another  note  of  equal 
solvency  is  substituted  therefor,  with  the  approval  of  the 
board  of  directors.  The  corporation  must  allow  a  com- 
mission, not  exceeding  five  per  cent,  per  annum,  on  all  such 
guarantee  notes  while  outstanding,  and  also  interest  on  all 
moneys  paid  on  such  notes  by  the  parties  liable  thereon, 
at  the  rate  of  twelve  per  cent  per  annum,  payable  half 
yearly  until  repaid  by  the  corporation,  unless  the  current 
rate  of  interest  is  different  from  this  amount,  in  which 
case  the  rate  payable  may,  from  time  to  time,  at  intervals 
of  not  less  than  one  year,  be  increased  or  reduced  by  the 
board  of  directors,  so  as  to  conform  to  the  current  rate. 
En.  March  21,  1872.     Am'd.  1873-4,  210. 

§442.  Insured  to  be  entitled  to  vote,  when.  After  the 
filing  of  the  declaration  of  the  fixed  capital,  as  in  this 
article  provided,  the  holders  of  policies  of  life  insurance 
for  the  term  of  life,  on  which  the  premiums  are  not  in 


§§443- 4  i3  LIFE,    ETC.,     INSURANCE    COMPANIES.  136 

default,  may  vote  at  the  election  of  directors,  and  have 
one  vote  for  each  one  thousand  dollars  insured  by  their 
policies,  respectively.     En.  March  21,  1872. 
Cal.Rep.Cit.   74,   492. 

§  443.     Number  of  directors   may  be  altered,   how.     The 

number  of  directors  specified  in  the  articles  of  incorpora- 
tion may  be  altered  from  time  to  time  dui'ing  the  existence 
of  the  corporation  by  resolution,  at  the  annual  meeting  of 
a  majority  of  those  entitled  to  vote  at  the  election  of  di- 
rectors, but  the  number  must  never  be  reduced  below  five. 
En.  March  21,  1872. 

§  444.  Investment  of  capital  stock.  Life,  health  and 
accident  insurance  corporations  may  invest  their  capital 
stock  as  follows: 

1.  In  loans  upon  unincumbered  and  improved  real  prop- 
erty within  the  state  of  Califoi-nia,  which  shall  be  worth 
at  the  time  of  the  investment  at  least  forty  per  cent  more 
than  the  sum  loaned. 

2.  In  the  purchase  of  or  loans  upon  interest-bearing 
bonds,  and  other  securities  of  the  United  States  and  of 
the  state  of  California. 

3.  In  the  purchase  of  or  loans  upon  interest-bearing 
bends  of  any  of  the  other  states  of  the  union,  or  of  any 
county,  or  incorporated  city,  or  city  and  county  in  the  state 
of  California. 

4.  In  the  purchase  of  or  loans  upon  any  stocks  of 
corporations  formed  under  the  laws  of  this  state,  except 
of  mining  corporations,  which  shall  have,  at  the  time  of 
the  investment,  a  value,  in  the  city  and  county  of  San 
Francisco,  of  not  less  than  sixty  per  cent  of  their  par 
value,  and  shall  be  rated  as  first-class  securities;  but  no 
loans  shall  be  made  on  any  securities  ■  specified  in  sub- 
divisions three  and  four  of  this  section,  in  any  amount 
beyond  sixty  per  cent  of  the  market  value  of  the  securi- 
ties, nor  shall  any  loan  be  made  on  the  stock  of  the 
corporation,  or  notes  or  other  obligations  of  its  corporators. 
Kn.  March  21,  1872.     Am'd.  1873-4,  211. 

§  445.  Limitations  to  the  holding  of  stock  and  in  other 
particulars  may  be  provided  for  in  by-laws.     The  corpora- 


137         ,    LIFE,    ETC.,    INSURANCE    COMPANIES.  §§  446,  447 

tion  may,  by  its  by-laws,  limit  the  number  of  shares  which 
may  be  held  by  any  one  person,  and  make  such  other 
provisions  for  the  protection  of  the  stockholders  and  the 
better  security  of  those  dealing  with  it  as  to  a  majority 
of  the  stockholders  may  seem  proper,  not  inconsistent 
with  the  provisions  of  this  title  or  part.  En.  March  21, 
1872. 

§  446.  Premiums,  how  payable.  All  premiums  must 
be  payable  wholly  in  cash,  or  one  half  s)r  a  greater  propor- 
tion in  cash,  and  the  remainder  in  promissory  notes 
bearing  interest,  as  may  be  provided  for  by  the  by-laws. 
Agreements  and  policies  of  insurance  made  by  the  cor- 
poration may  be  upon  the  basis  of  full  or  partial  partici- 
pation in  the  profits,  or  without  any  participation  therein, 
as  may  be  provided  by  the  by-laws  and  agreed  between 
the  parties.     En.  March  21,  1872. 

§  447.  Insurance  corporations  to  furnish  data  to  insur- 
ance commissioner.  Employment  of  actuary.  Every  life 
insurance  corporation  organized  under  the  laws  of  this 
state  must,  on  or  before  the  first  day  of  February  of  each 
year,  furnish  the  insurance  commissioner  the  necessary 
data  for  determining  the  valuation  of  all  its  policies  out- 
standing on  the  thirty-first  day  of  December  then  next 
preceding.  And  every  life  insurance  company  organized 
under  the  laws  of  any  other  state  or  countiy,  and  doing 
business  in  this  state,  must,  upon  the  written  requisition 
of  the  commissioner,  furnish  him,  at  such  time  as  he 
may  designate,  the  requisite  data  for  determining  the 
valuation  of  all  of  its  policies  then  outstanding;  such 
valuations  must  be  based  upon  the  rate  of  mortality  estab- 
lished by  the  American  experience  life-table  and  interest 
at  four  and  one  half  per  cent  per  annum;  provided,  that 
from  and  after  the  thirty-first  day  of  December,  A.  D.  one 
thousand  eight  hundred  and  ninety-one,  such  valuations 
must  be  based  upon  the  rate  of  mortality  established  by 
the  combined  experience  or  actuaries'  table  of  mortality, 
with  interest  at  the  rate  of  four  per  cent  per  annum.  When 
the  laws  of  any  other  state  or  territory  require  of  a  life  in- 
surance company  organized  under  the  laws  of  this  state  a 
valuation  of  its  outstanding  policies  by  any  standard  orf 
valuation  different  from  that  named  in  this   section,  the 


8§  448-450  LIFE,    ETC.,    INSURANCE    COMPANIES.     «       138 

Insurance  commissioner  is  hereby  authorized  to  make 
8uch  valuation  for  use  in  such  other  state  or  territory,  and 
to  issue  his  certificate  in  accordance  therewith.  For  the 
purpose  of  making  the  valuations,  the  insurance  com- 
missioner is  authorized  to  employ  a  competent  actuary, 
whose  compensation  for  such  valuations  shall  be  three 
cents  for  each  thousand  dollars  of  insurance,  to  be  paid 
by  the  respective  companies  whose  policies  are  thus 
valued.    En.  March  21,  1872.    Am'd.  1873-4,  211;  1889,  35. 

§  448.  No  stamp  required  on  accident  insurance  contract. 
No  stamp  is  required  nor  stamp  duty  exacted  on  any 
contract  of  insurance,  when  such  contract  insures  against 
accident  which  may  result  in  injury  or  death.  En.  March 
21,  1872. 

See  act  of  March  28,  1874,  relative  to  Mutual  Beneficial 
and  Relief  Associations,  Appendix,  title  Benefit  Societies. 

§449.     Valuation     of     policies,     retaliatory     provisions. 

When  the  certificate  of  the  insurance  commissioner  of 
this  state,  of  the  valuation  of  the  policies  of  a  life  insur- 
ance company,  as  provided  in  section  four  hundred  and 
forty-seven  of  the  Civil  Code  of  this  state,  issued  to  any 
company  organized  under  the  laws  of  this  state,  shall  not 
be  accepted  by  the  insurance  authorities  of  any  other 
state,  in  lieu  of  a  valuation  of  the  same,  by  the  iniiurance 
ofiicer  of  such  other  state,  then  every  company  organized 
under  the  laws  of  such  other  state  doing  business  in  this 
state,  shall  be  required  to  have  a  separate  valuation  of 
its  policies  made  under  the  authority  of  the  insurance 
commissioner  of  this  state,  as  provided  in  section  four 
hundred  and  forty-seven  of  the  Civil  Code.  En.  Stats. 
1873-4,  270. 

§450.  Policy  to  contain  what  previsions.  Every  con- 
tract or  policy  of  insurance  hereafter  made  by  any  person 
or  corporation  organized  under  the  laws  of  this  state,  or 
under  those  of  any  other  state  or  country,  with  and  upon 
the  life  of  a  resident  of  this  state,  and  delivered  within 
this  state,  shall  contain,  unless  specifically  contracted 
between  the  insurer  and  the  insured  for  tontine  insurance. 
Of  for  other  term  or  paid-up  insurance,  a  stipulation  that 
when,  after  three  full  annual  premiums  shall  have  been 


139  LIFE,     ETC.,     INSURANCE     COMPANIESv  §  -150 

paid  on  such  policy,  it  shall  cease  or  become  void  solely 
by  the  nonpayment  of  any  premium  when  due,  its  entire 
net  reserve,  by  the  American  experience  mortality,  and 
interest  at  four  and  one  half  per  cent  yearly,  less  any 
indebtedness  to  the  company  on  such  policy,  shall  be 
applied  by  such  company  as  a  single  premium,  at  such 
company's  published  rates  in  force  at  the  date  of  original 
policy,  but  at  the  age  of  the  insured  at  time  of  lapse,  either 
to  the  purchase  of  nonparticipating  term  insurance  for 
the  full  amount  insured  by  such  policy,  or  upon  the  written 
application  by  the  owner  of  such  policy,  and  the  surrender 
thereof  to  such  company  within  three  months  from  such 
nonpayment  of  premium,  to  the  purchase  of  a  nonpartici- 
pating paid-up  policy,  payable  at  the  time  the  original 
policy  would  be  payable  if  continued  in  force;  both  kinds 
of  insurance  to  be  subject  to  the  same  conditions,  except 
as  to  payment  of  premiums,  as  those  of  the  original  policy. 
It  may  be  provided,  however,  in  such  stipulation,  that  no 
part  of  such  term  insurance  shall  be  due  or  payable,  unless, 
satisfactory  proofs  of  death  be  furnished  to  the  insuring 
company  within  one  year  after  death,  and  that  if  death 
shall  occur  within  three  years  after  such  nonpayment  of 
premium,  and  during  such  term  of  insurance,  there  shall 
be  deducted  from  the  amount  payable  the  sum  of  all  the 
premiums  that  would  have  become  due  on  the  original 
policy  if  it  had  continued  in  force.  If  the  reserve  on 
endowment  policies  be  more  than  enough  to  purchase 
temporary  insurance,  as  aforesaid,  to  the  end  of  the  en- 
dowment term,  the  excess  shall  be  applied  to  the  purchase 
of  pure  endowment  insurance,  payable  at  the  end  of  the 
term,  if  the  insured  be  then  living.  If  any  life  insurance 
corporation  or  company  shall  deliver  to  any  person  in  this 
state  a  policy  of  insurance  upon  the  life  of  any  person 
residing  in  this  state,  not  in  conformity  with  the  pro- 
visions of  this  section,  the  right  of  such  corporation  or 
company  to  transact  business  in  this  state  shall  thereupon 
and  thereby  cease  and  terminate,  and  the  insurance  com- 
missioner shall  immediately  revoke  the  certificate  of  such 
corporation  or  company  authorizing  it  to  do  business  in 
this  state,  and  publish  such  revocation,  daily,  for  the 
period  of  two  weeks,  in  two  daily  newspapers,  one  pub- 
lished In  the  city  of  San  Francisco  and  the  other  in  the 


§§  451-454  OFFICER?    AND   CORPOrwVTE    STOCK.  140 

city  of  Sacramento.     En.  Stats.  1873-4,  271.     Am'd.  1877-8, 
82;  1880,  91. 

Cal.Rep.Cit.  123,  679;   123,  6S0  ;   129,  458;   129,  459;   129,  460. 

§451.  Fraternal  societies  exempt  from  insurance  laws. 
All  associations  or  secret  orders,  and  ottier  benevolent 
or  fraternal  co-operative  societies,  incorporated  or  organ- 
ized for  the  purpose  of  mutual  protection  and  relief  of  its 
members,  and  for  the  payment  of  stipulated  sums  of  money 
to  its  members,  or  to  the  family  of  deceased  members, 
and  not  for  profit,  are  declared  not  to  be  insurance  com- 
panies in  the  sense  and  meaning  of  the  insurance  laws  of 
this  state,  and  are  exempt  from  the  provisions  of  all 
existing  insurance  laws  of  this  state.  En.  Stats.  1873-4, 
271.    Am'd.  1877-8,  82.     Rep.  1880,  92.    En.  Stats.  1885,  221. 

Cal.Rep.Cit.   121,  321 ;   133,  691. 

§452.  Policies  continued  in  force.  (Repealed.)  En. 
1877-8,  83.     Rep.  1880,  92. 


TITLE     III. 
RAILROAD    CORPORATIONS. 

Chapter    I.     Officers  and  Corporate  Stock,   §§  454-459. 
II.     Enumeration  of  Powers,    §§   465-478. 
III.     Business,  how  Conducted,   §§  479-494.- 

CHAPTER    I. 
OFFICERS    AND     CORPORATE     STOCK. 

§  454.  Directors  to  be  elected,  ■when. 

§  455.  Additional   provisions    in   assessment   and   transfer   of   stock. 

§  456.  Corporations  may  borrow  money  and  issue  bonds.     Limita- 
tion of  amount. 

§  457.  To  provide  a  sinking  fund  to  pay  bonds. 

§  458.  Capital  stock  to  be  fixed. 

§  459.  Certificate  of  payment  of  fixed  capital  stock. 

§454.  Directors  to  be  elected,  when.  Directors  of  rail- 
road corporations  may  be  elected  at  a  meeting  of  the 
stockholders  other  than  the  annual  meeting  as  a  majority 
of  the  fixed  capital  stock  may  determine,  or  as  the  by-laws 


141  OFFICERS   AND   CORPORATE    STOCK.  §§  455,  456 

may  provide;   notice  thereof  to  be  given  as  provided  for 
notices  of  meetings  to  adopt  by-laws  in  article  II,  chapter 
I,  title  I,  of  this  part.     En.  March  21,  1S72. 
Cal.Rep.Cit.   110,  692;    132,  67S. 

§  455.  Additional  provisions  in  assessment  and  transfer 
of  stock.  No  stock  in  any  railroad  corporation  is  trans- 
ferable until  all  the  previous  calls  or  installments  thereon 
have  been  fully  paid  in;  nor  is  any  such  transfer  valid, 
except  as  between  the  parties  thereto,  unless  at  least 
twenty  per  cent  has  been  paid  thereon  and  certificates 
issued  therefor,  and  the  transfer  approved  by  the  board  of 
directors.    En.  March  21,  1872. 

§  456.  Corporations  may  borrow  money  and  issue  bonds. 
Limitation  of  amount.  Railroad  corporations  may  borrow, 
on  the  credit  of  the  corporation,  and  under  such  regulations 
and  restrictions  as  the  board  of  directors  thereof,  by  unani- 
mous concurrence,  may  impose,  such  sums  of  money  as 
may  be  necessary  for  constructing  and  completing  their 
railroad,  with  its  equipments,  and  for  the  purchase  of 
all  necessary  rolling  stock  and  all  else  relative  thereto, 
and  may  issue  promissory  notes  therefor,  or  may  issue 
and  dispose  of  bonds  to  raise  moneys  necessary  to  pay 
therefor,  at  a  rate  of  interest  not  exceeding  ten  per  cent 
per  annum;  and  may  also  issue  bonds,  or  promissoi-y  notes, 
at  the  same  rate  of  interest  in  payment  of  any  debts  or  con- 
tracts for  constructing  and  completing  their  road,  with  its 
equipments  and  rolling  stock,  and  all  else  relative  thereto, 
and  for  the  purchase  of  railroads  and  other  property  within 
the  purpose  of  the  corporation.  The  amount  of  bonds,  or 
promissory  notes,  issued  for  such  purposes  must  not 
exceed  in  all  the  amount  of  their  capital  stock;  and  to 
secure  the  payment  of  such  bonds,  or  notes,  they  may 
mortgage  their  corporate  property  and  franchises,  or  may 
secure  the  payments  of  such  bonds,  or  notes,  by  deed  of 
trust  of  their  corporate  property  and  franchises.  Any 
person  or  corporation  formed  under  the  laws  of  this  state, 
or  of  any  other  state  within  the  United  States,  that  the 
directors  of  the  railroad  corporation  may,  by  unanimous 
concurrence,  select,  may  be  trustees  in  such  deed  of  trust. 
En.  March  21,  1872.    Am'd.  1880,  10;  1897,  73;  1899,  57. 

Cal.Rep.Cit.   109,  595;   124,  328;   124,  329;   125,  409;   125,  454. 


H  457-459  OFFICERS  AND   CORPORATE   STOCK.  112 

Debt  exceeding  available  means,  penalty:  See  Pen.  Code, 
sec.  566. 

§  457.  To  provide  a  sinking  fund  to  pay  bonds.  The 
directors  must  provide  a  sinking  fund,  to  be  specially 
applied  to  the  redemption  of  such  bonds  on  or  before  their 
maturity,  and  may  also  confer  on  any  holder  of  any  bond 
or  note  so  issued,  for  money  borrowed  or  in  payment  of 
any  debt  or  contract  for  the  construction  and  equipment 
of  such  road,  the  right  to  convert  the  principal  due  or 
owing  thereon  into  stock  of  such  corporation,  at  any  time 
within  eight  years  from  the  date  of  such  bonds,  under 
such  regulations  as  the  directors  may  adopt.  En.  March  21. 
1872.  k 

Cal.Rep.Cit.  125,   454. 

§  458.  Capital  stocl<  to  be  fixed.  When,  at  any  time 
after  filing  the  articles  of  incorporation,  it  is  ascertained 
that  the  capital  stock  therein  set  out  is  either  more  or  less 
than  actually  required  for  constructing,  equipping,  operat- 
ing, and  maintaining  the  road,  by  a  two-third  vote  of  thy 
stockholders  the  capital  stock  must  be  fixed,  and  a  cer- 
tificate thereof,  and  of  the  proceedings  had  to  fix  the 
same,  must  be  made  out  and  filed  in  the  oflice  of  the 
secretary  of  state.     En.  March  21,  1872. 

Cal.Rep.Cit.   65,   209. 

§  459.  Certificate  of  payment  of  fixed  capital  stock. 
Within  thirty  days  after  the  payment  of  the  last  install- 
ment of  the  fixed  capital  stock  of  any  railroad  corporation 
organized  under  this  title  and  part,  the  president  and 
secretary,  and  a  majority  of  the  directors  thereof,  must 
make,  subscribe,  and  file  in  the  office  of  the  secretary  of 
state  a  certificate  stating  the  amount  of  the  fixed  capital 
stock,  and  that  the  whole  thereof  has  been  paid  in.  The 
certificate  must  be  verified  by  the  affidavit  of  the  president 
and  secretary.    En.  March  21,  1872. 


143  ENUMERATION    OF    POWERS.  §  465 

CHAPTER  II. 
ENUMERATION    OF    POWERS. 

S  465.     Enumeration  of  powers : 

1.  To  survey  road. 

2.  May  accept  real  estate. 

3.  May  acquire   real  estate. 

4.  Lay  out  road,  how  wide. 

5.  Where  may   construct   road. 

6.  May  cross  or  connect  roads. 

7.  May  purchase  land,  timber,  stone,  gravel,  etc. 

8.  Carry  persons  and  freight. 

9.  Erect   necessary   buildings. 

10.  Regulate   time  and  freights,  subject  to   legislation. 

11.  Regulate  force  and  speed. 

12.  Purchasing  or  acquiring  franchises  of  other  railroads. 
§  466.     Map  and  profile  to  be  filed. 

§  467.      May  change  line  of  road. 

§  468.      Forfeiture  of  franchise. 

§  469.      Crossings    and    intersections.      Condemnation. 

§  470.      Not  to  use  streets,  alleys,  or  water  in  cities  or  towns,  except 

by  a  two-third  vote  of  the  city  or  town  authorities. 
§  471.     Railroads    through    cities    not   to    charge    fare    to    and    from 

points  therein.      (Repealed.) 
§  472.     When  crossing  railroads  or  highways,  how  other  lands  are 

acquired. 
S  473.     Corporations  may  consolidate.     Publication  of  notice.    Copy 

to  be  filed. 
§  474.     State  lands  granted  for  use  of  corporations. 
§  475.      Grant  not  to  embrace  town   lots. 

§  476.     Wood,   stone,  and  earth  may  be  taken  from  state  lands. 
§  477.      Lands  to  revert  to  state,   when. 
S  478.      Selections  made,  how  proved  and  certified  to. 

§  465.  Enumeration  of  powers.  Every  railroad  cor- 
poration lias  power: 

1.  To  survey  road.  To  cause  such  examination  and 
surveys  to  be  made  as  may  be  necessary  to  the  selection 
of  the  most  advantageous  route  for  the  railroad;  and  for 
such  purposes  their  officers,  agents  and  employees  may 
enter  upon  the  lands  or  waters  of  any  person,  subject  to 
liability  for  all  damages  which  they  may  do  thereto; 

2.  May  accept  real  estate.  To  receive,  hold,  take  and 
convey,  by  deed  or  otherwise,  as  a  natural  person,  such 
voluntary  grants  and  donations  of  real  estate  and  other 
property  which  may  be  made  to  it  to  aid  and  encourage 
the  construction,  maintenance  and  accommodation  of  such 
railroad ; 

3.  May  acquire  real  estate.  To  purchase,  or  by  volun- 
tary grants  or  donations  to  receive,  enter,  take  possession 


5  465  ENUMERATION    OF    POWERS.  ^44 

of,  hold  and  use  all  such  real  estate  and  other  property  as 
may  be  absolutely  necessary  for  the  construction  and 
maintenance  of  such  railroad,  and  for  all  stations,  depots 
and  other  purposes  necessary  to  successfully  work  and 
conduct  the  business  of  the  road; 

4.  Lay  out  road,  how  wide.  To  lay  out  its  road,  not 
exceeding  nine  rods  wide,  and  to  construct  and  maintain 
the  same,  with  a  single  or  double  track,  and  with  such 
appendages  and  adjuncts  as  may  be  necessary  for  the 
convenient  use  of  the  same; 

5.  Where  may  construct  road.  To  construct  their  roads 
across,  along  or  upon  any  stream  of  water,  watercourse, 
roadstead,  bay,  navigable  stream,  street,  avenue  or  high- 
way, or  across  any  railway,  canal,  ditch  or  fiume  which  the 
route  of  its  road  intersects,  crosses  or  runs  along,  in  such 
manner  as  to  afford  security  for  life  and  property;  but  the 
corporation  shall  restore  the  stream  or  watercourse, 
road,  street,  avenue,  highway,  railroad,  canal,  ditch  or 
flume  thus  intersected  to  its  former  state  of  usefulness  as 
near  as  may  be,  or  so  that  the  railroad  shall  not  unneces- 
sarily impair  its  usefulness  or  injure  its  franchise; 

6.  May  cross  or  connect  roads.  To  cross,  intersect, 
join,  or  unite  its  railroad  with  any  other  railroad,  either 
before  or  after  construction,  at  any  point  upon  its  route, 
and  upon  the  grounds  of  such  other  railroad  corporation, 
with  the  necessary  turnouts,  sidings  and  switches,  and 
other  conveniences  in  furtherance  of  the  objects  of  its 
connections;  and  every  corporation  whose  railroad  is,  or 
shall  be  hereafter  intersected  by  any  new  railroad,  shall 
unite  with  the  owners  of  such  new  railroad  in  forming  such 
intersections  and  connections,  and  grant  facilities  therefor; 
and  if  the  two  corporations  cannot  agree  upon  the  amount 
of  compensation  to  be  made  therefor,  or  the  points  or  the 
manner  of  such  crossings,  intersections  and  connections, 
the  same  shall  be  ascertained  and  determined  as  is  pro- 
vided in  title  VII,  part  III,  Code  of  Civil  Procedure  (sees. 
1237-1263); 

7.  May  purchase  land,  timber,  stone,  gravel,  etc.  To 
purchase  lands,  timber,  stone,  gravel  or  other  materials 
to  be  used  in  the  construction  and  maintenance  of  its 
road,    and    all    necessary    appendages    and    adjuncts,    or 


145  ENUMERATION     CP     POWERS.  §  465 

•.ac(|nii-e  them  in  the  manner  provided  in  title  VII,  part  III, 
Codfj  of  Civil  Procedure,  for  the  condemnation  of  lands; 
uud  to  change  the  line  of  its  road,  in  whole  or  in  part 
"Whenever  a  majority  of  the  directors  so  determine,  as  is 
provided  hereinafter;  but  no  such  change  must  vary  the 
general  route  of  such  road,  as  contemplated  in  its  articles 
of  incorporation; 

8.  Carry  persons  and  freight.  To  carry  persons  and 
property  on  their  railroad,  and  to  receive  tolls  or  com- 
pensation therefor; 

9.  Erect  necessary  buildings.  To  erect  and  maintain 
all  necessary  and  convenient  buildings,  stations,  depots, 
fixtures  and  machinery  for  the  accommodation  and  use  of 
their  passengers,  freight  and  business; 

10.  Regulate  time  and  ireights,  subject  to  legislation. 
To  regulate  the  time  and  manner  in  which  passengers  and 
property  shall  be  transported,  and  the  tolls  and  com- 
pensation to  be  paid  therefor  within  the  limits  prescribed 
by  law  and  subject  to  alteration,  change  or  amendment  by 
the  legislature  at  any  time; 

11.  Regulate  force  and  speed.  To  regulate  the  force 
and  speed  of  their  locomotives,  cars,  trains  or  other 
machinery  used  and  employed  on  their  road,  and  to  estab- 
lish, execute  and  enforce  all  needful  and  proper  rules  and 
regulations  for  the  management  of  its  business  transac- 
tions usual  and  proper  for  railroad  corporations; 

12.  Purchasing  or  acquiring  franchises  of  other  rail- 
roads. To  purchase,  lease  or  acquire  the  franchises,  rights 
and  property,  or  any  part  thereof,  of  any  railroad  cor- 
poration, leasing  or  owning  any  railroad  outside  of  the 
state  of  California,  and  to  operate  the  same,  and  lo  use  the 
franchises  of  any  such  road,  and  to  build  and  operate 
extensions  thereof;  provided  that  nothing  herein  shall 
authorize  any  corporation  to  purchase  the  franchises, 
rights  and  property  of  any  railroad  operated  in  competition 
with  it;  and  to  purchase,  acquire  and  hold  the  stocks, 
bonds  or  other  securities  of  any  railroad  corporation 
organized  under  the  laws  of  this  state  or  of  any  other  state 
or  territory,  with  full  power  to  sell  the  same;  provided 
that  nothing  herein  will  authorize  any  corporation  to 
purchase  the  stock  of  any   railroad  corporation  operated 

Civ.  Code— 7 


5§  466,  467  ENUMERATION    OF    POWERS.  146 

in  competition  witli  it.     En.  Marcli  21,  1872.     Am'd.  1903, 

245. 

Cal.Rep.Cit.  G7,  432;   92,  045;  111,  227.   Subd.  1  —  67,  431; 

129,  10;  134,  415.   Subd.  2—129,  10.   Subd.  3  —  53,  227; 

129,  10.  Subd.  4  —  53,  227;   67,  431;  134,  415.  Subd.  5— 

69,  206;  92,  645;   93,  265.   Subd.  6  —  91,  452.  Subd.  7— 

53,  228;  67,  431;  134,  414. 

Exceeding  limit  upon  power  to  acquire  realty:  See 
ante,  sec.  360. 

Eminent  domain:     See  Code  Civ.  Proc,  sees.  1237-1263. 

Subd.  8.  Rates  of  charges:  See  post,  sec.  489.  Estab- 
lishment of  rates  by  railroad  commissioners:  See  Const. 
Cal.,  art.  XII,  sec.  22. 

Subd.  10.  Regulating  time  and  manner  of  transporta- 
tion, time  tables  of  starting:   See    post    sec.  481. 

§466.  Map  and  profile  to  be  filed.  Every  railroad  cor- 
poration in  this  state  must,  within  a  reasonable  time  after 
its  road  is  finally  located,  cause  to  be  made  a  map  and 
profile  thereof,  and  of  the  land  acquired  for  the  use  thereof, 
and  the  boundaries  of  the  several  counties  through  which 
the  road  may  run,  and  file  the  same  in  the  office  of  the 
secretary  of  state;  and  also  like  maps  of  the  parts  thereof 
located  in  different  counties,  and  file  the  same  in  the  ofiice 
of  the  clerk  of  the  county  in  which  such  parts  of  the 
road  are,  there  to  remain  of  record  forever.  The  maps  and 
profiles  must  be  certified  by  the  chief  engineer,  the  acting 
president  and  secretary  of  such  company,  and  copies  of 
the  same,  so  certified  and  filed,  be  kept  in  the  office  of  the 
secretary  of  the  corporation,  subject  to  examination  by  all 
parties  interested.    En.  March  21,  1872. 

Cal.Rep.Cit.   67,   432. 

§  467.  May  change  line  of  road.  If,  at  any  time  after 
the  location  of  the  line  of  the  railroad  and  the  filing  of 
the  maps  and  profiles  thereof,  as  provided  in  the  preceding 
section,  it  appears  that  the  location- can  be  improved,  the 
directors  may,  as  provided  in  subdivision  7,  section  465, 
alter  or  change  the  same,  and  cause  new  maps  and  profiles 
to  be  filed,  showing  such  changes,  in  the  same  offices 
where  the  originals  are  of  [on]  file,  and  may  proceed  in  the 
same  manner  as  the  original  location  was  acquired,  to 
acquire  and  take  possession  of  such  new  line,  and  must 
sell  or  relinquish  the  lands  owned  by  them  for  the  original 


147  ENUMERATION     OF     POWERS.  §§  468-470 

location,   within  five   years   after   such   change.     No   new 
location  as  herein  provided  must  be  so  run  as  to  avoid  any 
points    named    in    their    articles    of    incorporation.      En. 
March  21,  1872. 
Changing  location:    See,  ante,  sec.  465,  subd.  7. 

§468.  Forfeiture  of  franchise.  Every  railroad  corpora- 
tion must  v^^ithin  two  years  after  filing  its  original  articles 
of  incorporation,  begin  the  construction  of  its  road,  and 
must  every  year  thereafter  complete  and  put  in  full  opera- 
tion at  least  five  miles  of  its  road,  until  the  same  is  fully 
completed;  and  upon  its  failure  so  to  do,  for  the  period 
of  one  year,  its  right  to  extend  its  road  beyond  the  point 
then  completed  is  forfeited.     En.  March  21,  1872. 

Cal.Rep.Cit.   92,   646. 

Organizing  and  commencing  work:  See  general  pro- 
vision, ante,  sec.  358. 

Act  enabling  railroad  companies  to  complete  railroads: 
See  post.  Appendix,  title  Railroads. 

§  469.  Crossings  and  intersections.  Condemnation. 
Whenever  the  track  of  one  railroad  intersects  or  crosses 
the  track  of  another  railroad,  whether  the  same  be  a  street 
railroad,  wholly  within  the  limits  of  a  city  or  town,  or 
other  railroad,  the  rails  of  either  or  each  road  must  be  so 
cut  and  adjusted  as  to  permit  the  passage  of  the  cars 
on  each  road  with  as  little  obstruction  as  possible;  and,  in 
case  the  persons  or  corporations  owning  the  railroads 
cannot  agree  as  to  the  compensation  to  be  made  for 
cutting  and  adjusting  the  rails,  the  condemnation  of  the 
right  of  way  over  the  one  for  the  use  of  the  other  road, 
may  be  had  in  proceedings  under  title  VII,  part  III,  Code 
of  Civil  Procedure,  and  the  damages  assessed  and  the 
right  of  way  granted  as  in  other  cases.    En.  March  21,  1872. 

Right  of 'eminent  domain:  Code  Civ.  Proc,  sees,  1237- 
1263. 

Crossings  and  Intersection:     See  ante,  sec.  465,  subd.  6. 

§470.  Not  to  use  streets,  alleys,  or  water  in  cities  or 
towns,  except  by  a  two-third  vote  of  the  city  or  town 
authorities.  No  railroad  corporation  must  use  any  street, 
alley,  or  highway,  or  any  of  the  land  or  water,  within  any 


§§471-473  i:.nu;.:~::ation   of   powers.  148 

incorpciated  city  or  town,  unless  the  right  to  so  use  the 
same  is  granted  by  a  two-third  vote  of  the  town  or  city 
authority  from  which  the  right  must  emanate.  En.  March 
21,  1S72. 

Cal.Rep.Cit.   69,  206;   92,  645;   105,  94;   109,  319. 

§  471.  Railroads  through  cities  not  to  charge  fare  to  and 
from  paints  therein.  (Repealed.)  En.  March  21,  1872. 
Am^d.  1875-6,  76.     Rep.  1877-8,  84. 

§472.  When  crossing  railroads  or  highways,  how  other 
lands  are  acquired.  Whenever  the  traclv  of  such  railroad 
crosses  a  railroad  or  highway,  such  railroad  or  highway 
may  be  carried  under,  over,  or  on  a  level  with  the  track, 
as  may  be  most  expedient;  and  in  cases  where  an  em- 
bankment or  cutting  necessitates  a  change  in  the  line  of 
such  railroad  or  highway,  the  corporation  may  take  such 
additional  lands  and  material  as  are  necessary  for  the 
construction  of  such  road  or  highway  on  such  new  line. 
If  such  other  necessary  lands  cannot  be  had  otherwise, 
they  may  be  condemned  as  provided  in  title  VII,  part  III, 
Code  of  Civil  Procedure;  and  when  compensation  is  made 
therefor,  the  same  becomes  the  psoperty  of  the  corporation. 
En.  March  21,  1872. 

§  473.  Corporations  may  consolidate.  Publication  of 
notice.  Copy  to  be  filed.  Any  railroad  corporation  incor- 
porated under  the  laws  of  this  state  may  consolidate  with 
one  or  more  railroad  corporations  Incorporated  under  the 
laws  of  this  state,  or  under  the  laws  of  any  other  state 
or  territory  of  the  United  States,  its  capital  stock,  prop- 
erties, roads,  equipments,  adjuncts,  franchises,  claims, 
demands,  contracts,  agreements,  obligations,  debts,  lia- 
bilities and  assets  of  every  kind  and  description,  upon 
such  terms  and  in  such  manner  as  may  be  agreed  upon  by 
their  respective  boards  or  directors;  provided,  no  such 
consolidation  shall  take  effect  until  the  same  shall  have 
been  ratified  and  coniirmed  in  writing  by  stockholders  of 
the  respective  corporations  representing  three  fourths  of 
the  subscribed  capital  stock  of  their  respective  corpora- 
tions. In  case  of  such  consolidation  "articles  of  incor- 
poration and  consolidation"  must  be  prepared,  setting 
forth:    First,  the  name  of  the  new  corporation;  second,  the 


149  ENUMERATION     OF     POWERS.  §  473 

purpose  for  which  it  is  formed;  third,  the  place  where  its 
principal  business  is  to  be  transacted;  fourth,  the  term  for 
which  it  is  to  exist,  which  shall  not  exceed  fifty  years;  fifth, 
the  number  of  its  directors  (which  shall  not  be  less  than 
five  nor  more  than  thirteen)  and  the  names  and  residences 
of  the  persons  appointed  to  act  as  such  until  their  suc- 
cessors are  elected  and  qualified;  sixth,  the  amount  of  its 
capital  stock  (which  shall  not  exceed  the  amount  actually 
required  for  the  purposes  of  the  new  corporation,  as  esti- 
mated by  competent  engineers),  and  the  number  of  shares 
into  which  it  is  divided;  seventh,  the  amount  of  stock 
actually  subscribed,  and  by  whom;  eighth,  the  termini  of 
its  road  or  roads  and  branches;  ninth,  the  estimated 
length  of  its  road  or  roads  and  branches;  tenth,  the  names 
of  the  constituent  corporations,  and  the  terms  and  con- 
ditions of  consolidation  in  full.  Said  articles  of  incor- 
poration and  consolidation  must  be  signed  and  counter- 
signed by  the  presidents  and  secretaries  of  the  several 
constituent  corporations  and  sealed  with  their  corporate 
seals.  There  must  be  annexed  thereto  memoranda  of 
the  ratification  and  confirmation  thereof  by  the  stock- 
holders of  each  constituent  corporation,  which  must  be 
respectively  signed  by  stockholders  representing  at  least 
three  fourths  of  the  capital  stock  of  their  respective  cor- 
porations. When  completed  as  aforesaid  said  articles  must 
be  filed  in  the  olfice  of  the  county  clerk  of  the  county  in 
which  the  original  articles  of  incorporation  of  either  of 
the  consolidating  corporations  are  filed,  and  a  copy  of 
the  articles  of  incorporation  and  consolidation  certified 
by  such  county  clerk  must  be  filed  in  the  oflice  of  the 
secretary  of  state,  and  thereupon  the  constituent  corpora- 
tions named  therein  must  be  deemed  and  held  to  have 
become  extinct  in  all  courts  and  places,  and  said  new 
corporation  must  be  deemed  and  held  in  all  courts  and 
places  to  have  succeeded  to  all  their  several  capital  stocks, 
properties,  roads,  equipments,  adjuncts,  franchises,  claims, 
demands,  contracts,  agreements,  assets,  choses  and  rights 
in  action  of  every  kind  and  description,  both  at  law  and 
in  equity,  and  to  be  entitled  to  possess,  enjoy,  and  enforce 
the  same  and  every  thereof,  as  fully  and  completely  as 
either  and  every  of  its  constituents  might  have  done  had 
no  consolidation  taken  place.     Said  consolidated  or  new 


J§  474-476  ENUMERATION     OF     POWERS.  150 

corporation  must  also,  in  all  courts  and  places,  be  deemed 
and  held  to  have  become  subrogated  to  its  several  con- 
stituents and  each  thereof,  in  respect  to  all  their  contracts 
and  agreements  with  other  parties,  and  all  their  debts, 
obligations,  and  liabilities,  of  every  kind  and  nature,  to 
any  persons,  corporations,  or  bodies  politic,  whomsoever, 
or  whatsoever,  and  said  new  corporation  must  sue  and  be 
sued  in  its  own  name  in  any  and  every  case  in  which  any 
or  either  of  its  constituents  might  have  sued  or  might 
have  been  sued  at  law  or  in  equity  had  no  such  consolida- 
tion been  made.  Nothing  in  this  section  contained  shall 
be  construed  to  impair  the  obligation  of  any  contract  to 
which  any  of  such  constituents  were  parties  at  the  date 
of  such  consolidation.  All  such  contracts  may  be  enforced 
by  action  or  suit,  as  the  case  may  be,  against  the  con- 
solidated corporation,  and  satisfaction  obtained  out  of  the 
property  which,  at  the  date  of  the  consolidation,  belonged 
to  the  constituent  which  was  a  party  to  the  contract  in 
action  or  suit,  as  well  as  out  of  any  other  property  belong- 
ing to  the  consolidated  corporation.  En.  March  21,  1872. 
Am'd.  1900-01,  327. 

Cal.Rep.Cit.  67,  61;  76,405;  76,407;  98,  216 ;  109,  577 ; 
109,  583;  109,  584;  109,  586;  109,  593;  109,  601;  110,  504; 
119,  343. 

§  474.  State  lands  granted  for  use  of  corporations. 
There  is  granted  to  every  railroad  corporation  the  right  of 
way  for  the  location,  construction  and  maintenance  of  their 
necessary  works,  and  for  every  necessary  adjunct  thereto, 
over  any  swamp,  overflowed,  or  other  public  lands  of  the 
state  not  otherwise  disposed  of  or  in  use,  not  in  any  case 
exceeding  in  length  or  width  that  which  is  necessary  for 
the  construction  of  such  works  and  adjuncts,  or  for  the 
protection  thereof,  not  in  any  case  to  exceed  two  hundred 
feet  in  width.    En.  March  21,  1872. 

§  475.  Grant  not  to  embrace  town  lots.  The  grants 
mentioned  in  the  preceding  section  do  not  apply  to  public 
lands  of  the  state  within  the  corporate  limits  of  towns  and 
cities,  or  within  three  miles  thereof.     En.  March  21,  1872. 

§  476.  Wood,  stone,  and  earth  may  be  taken  from  state 
lands.  The  right  to  take  from  any  of  the  lands  belonging 
to  the  state,  adjacent  to  the  works  of  the  corporation,  all 


151  ENUMERATION    OF    POWERS.  §§  477,  478 

materials,  such  as  wood,  stone,  and  earth,  naturally 
appurtenant  thereto,  which  may  be  necessary  and  con- 
venient for  the  original  construction  of  its  works  and 
adjuncts,  is  granted  to  such  corporations.     En.  March  21, 

1872. 

§  477.  Lands  to  revert  to  state,  when.  If  any  corpora- 
tion receiving  state  lands  or  appurtenances  thereunder  is 
dissolved,  ceases  to  exist,  is  discontinued,  or  the  route  or 
line  of  its  works  is  so  changed  as  not  to  cover  or  cross 
the  lands  selected,  or  the  use  of  the  lands  selected  is 
abandoned,  such  selected  lands  revert,  and  the  title  thereto 
is  reinvested  in  the  state  or  its  grantees,  free  from  all 
such  uses.     En.  March  21,  1872. 

§  478.  Selections  made,  how  proved  and  certified  to. 
When  any  selection  of  the  right  of  way,  or  land  for  an 
adjunct  to  the  works  of  a  railroad  corporation,  is  made 
by  any  corporation,  the  secretary  thereof  must  transmit 
to  the  surveyor-general,  comptroller  of  state,  and  recorder 
of  the  county  in  which  the  selected  lands  are  situate,  a 
plat  of  the  lands  so  selected  giving  the  extent  thereof 
and  uses  for  which  the  same  is  claimed  or  desired,  duly 
verified  to  be  correct;  and,  if  approved,  the  surveyor- 
general  must  so  indorse  the  plat,  and  issue  to  the  corpora- 
tion a  permit  to  use  the  same,  unless  on  petition  properly 
presented  to  the  court,  a  review  is  had  and  such  use 
prohibited.    En.  March  21,  1872. 

Cal.Rep.Cit.  101,  336. 


§§  479,  480  BUSINESS,    HOW    CONDUCTED.  152 


CHAPTER    III. 

BUSINESS,    HOW    CONDUCTED. 

§  479.     Checks  to  be  affixed  to  all  baggage.     Damages, 

§  4S0.      Annual  report  to  be  verified.     Form  of  report. 

§  481.     Duties  of   corporation. 

I  482.      Corporation  to  pay  damages  for  refusal. 

§  483.  Furnish  room  inside  passenger  cars,  and  be  responsible 
for  damages  occurring  on  freight  and  other  cars. 

S  484.  Corporations  to  post  printed  regulations,  and  not  responsible 
for  damages  in  violation  of  rules. 

S  485.  Fences.  To  pay  damages.  Not  liable  in  certain  cases.  Cor- 
poration may   recover  damages,   when. 

§  486.      Regulations  of  trains.     Penalty. 

§  487.     Passenger  refusing  to  pay  fare. 

§  488.      Officers  to  wear  badge. 

§  489.      Rates  of  charges. 

§  490.     Passenger  tickets,  how  issued,  and  to  be  good  for  six  months. 

§  491.      Character  of  rails  to  be  used. 

§  492.      Elevated  or  underground  railways. 

§  493.     To  apply  to  all  railroad  companies. 

§  494.     Sale  of  property  to  another  railroad. 

§479.  Checks  to  be  affixed  to  all  baggage.  Damages. 
A  check  must  be  affixed  to  every  package  or  parcel  of 
baggage  when  taken  for  transportation  by  any  agent  or 
employee  of  such  railroad  corporation,  and  a  duplicate 
thereof  given  to  the  passenger  or  person  delivering  the 
same  in  his  behalf;  and  if  such  check  is  refused  on  demand, 
the  railroad  corporation  must  pay  to  such  passenger  the 
sum  of  twenty  dollars,  to  be  recovered  in  an  action  for 
damages;  and  no  fare  or  toll  must  be  collected  or  received 
from  such  passenger,  and  if  such  passenger  has  paid  his 
fare,  the  same  must  be  returned  by  the  conductor  in  charge 
of  the  train;  and  on  producing  the  check,  if  his  baggage  is 
not  delivered  to  him  by  the  agent  or  employee  of  the  rail- 
road corporation,  he  may  recover  the  value  thereof  from 
the  corporation.    En.  March  21,  1872. 

Cal.Rep.Cit.  120,  317. 

§  480.  Annual  report  to  be  verified.  Form  of  report. 
Every  railroad  corporation  must  make  an  annual  report 
to  the  secretary  of  state,  or  other  officer  designated  by  law, 
of  its  operations  for  each  year,  ending  on  the  thirty-first 
day  of  December,  verified  by  the  oaths  of  the  president  or 
acting  superintendent  of  operations,  the  secretary  and 
treasurer  of  such  corporation,  and  file  it  in  the  office  of  the 


153  BUSINESS,    HOW    CONDUCTED.  5  481 

secretary  of  state,  or  such  other  designated  officer,  by  the 
twentieth  day  of  February,  which  must  state: 

1.  The  capital  stock,  and  the  amount  thereof  actually 
paid  in; 

2.  The  amount  expended  for  the  purchase  of  lands  for 
the  construction  of  the  road,  for  buildings,  and  for  engines 
and  cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedness,  and  the 
amount  due  the  corporation; 

4.  The  amount  received  from  the  transportation  of  pas- 
.sengers,  property,  mails,  and  express  matter,  and  from 
other  sources; 

5.  The  amount  of  freight,  specifying  the  quantity  in 
tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  build- 
ings, and  other  expenses,  in  gross,  showing  the  current 
expenses  of  running  such  road; 

7.  The  number  and  amount  of  dividends,  and  when  paid; 

8.  The  number  of  engine-houses  and  shops,  of  engines 
and  cars,  and  their  character.    En.  March  21,  1872. 

§  481.  Duties  of  corporation.  Every  such  corporation 
must  start  and  run  their  cars,  for  the  transportation  of 
persons  and  property,  at  such  regular  times  as  they  shall 
fix  by  public  notice,  and  must  furnish  sufficient  accommoda- 
tions for  the  transportation  of  all  such  passengers  and 
property  as,  within  a  reasonable  time  previous  thereto, 
offer  or  is  offered  for  transportation,  at  the  place  of 
starting,  at  the  junction  of  other  railroads,  and  at  siding 
and  stopping-places  established  for  receiving  and  discharg- 
ing way  passengers  and  freight;  and  must  take,  transport, 
and  discharge  such  passengers  and  property  at,  from,  and 
to  such  places,  on  the  due  payment  of  tolls,  freight,  or  fare 
therefor.    En.  March  21,  1872. 

Cal.Rep.Cit.   134,   414. 

Rules  and  regulations:    See    post,  sec.  484. 

Act  compelling  railroads  to  operate  roads:  See  post. 
Appendix,  title  Railroads. 

Act  exempting  railroad  constructed  at  elevation  of  five 
thousand  feet  from  operating  roads  at  certain  times:  See 
post.  Appendix,  title  Railroads. 


§§482-485  BUSINESS.    HOW    CONDUCTED.  154 

Act  organizing  railroad  commissioners  and  defining 
powers:     See  post.  Appendix,  title  Railroads. 

§  482.  Corporation  to  pay  damages  for  refusal.  In  case 
of  refusal  by  such  corporation  or  their  agents  so  to  take 
and  transport  any  passengers  or  property  or  to  deliver  the 
same,  at  the  regular  appointed  places,  such  corporation 
must  pay  to  the  party  aggrieved  all  damages  which  are 
sustained  thereby,  with  costs  of  suit.    En.  March  21,  1872. 

§  483.  Furnish  room  inside  passenger  cars,  and  be  re- 
sponsible for  damages  occurring  on  freight  and  other  cars. 
Every  railroad  corporation  must  furnish,  on  the  intide  of 
.its  passenger  cars,  sufficient  room  and  accommodations 
for  all  passengers  to  whom  tickets  are  sold  for  any  one 
trip,  and  for  all  persons  presenting  tickets  entitling  them 
to  travel  thereon;  and  when  fare  is  taken  for  transporting 
passengers  on  any  baggage,  wood,  gravel,  or  freight  car, 
the  same  care  must  be  taken  and  the  same  responsibility 
is  assumed  by  the  corporation  as  for  passengers  on  pas- 
senger cars.     En.  March  21,  1872. 

Cal.Rep.Cit.   70,   173. 

Accommodations  to  be  furnished:    See    ante,  see.  481. 

§  484.  Corporations  to  post  printed  regulations,  and  not 
responsible  for  damages  in  violation  of  rules.  Every 
railroad  corporation  must  have  printed  and  conspicuously 
posted  on  the  inside  of  its  passenger  cars  its  rules  and 
regulations  regarding  fare  and  conduct  of  its  passengers; 
and  in  case  any  passenger  is  injured  on  or  from  the  plat- 
form of  a  car,  or  on  any  baggage,  wood,  gravel,  or  freight 
car,  in  violation  of  such  printed  regulations,  or  in  violation 
of  positive  verbal  instructions  or  injunctions  given  to 
such  passenger  in  person  by  any  olficer  of  the  train,  the 
corporation  is  not  responsible  for  damages  for  such 
injuries,  unless  the  corporation  failed  to  comply  with  the 
provisions  of  the  preceding  section.    En.  March  21,  1872. 

Cal.Rep.Cit.   78.  364  ;   87,  73. 

Rules  and  regulations  by  carriers  of  passengers,  gener- 
ally:   See,  post,  sec.  2186. 

§485.  Fences.  To  pay  damages.  Not  liable  in  certain 
cases.  Corporation  may  recover  damages,  when.  Railroad 
corporations  must  make  and  maintain  a  good  and  suflacient 


155  BUSINESS,    HOW    CONDUCTED.  5  486 

fence  on  either  or  both  sides  of  their  track  and  property 

In  case  they  do  not  make  and  maintain  such  fence,  if  their 

engine   or   cars-  shall   kill   or   maim    any   cattle   or   other 

domestic   animals   upon   their   line  of   road   which   passes 

through  or  along  the  property  of  the  owner  thereof,  they 

must  pay  to  the  owner  of  such  cattle  or  other  domestic 

animals  a  fair  market  price  for  the  same,  unless  it  occurred 

through  the  neglect  or  fault  of  the  owner  of  the  animal  so 

killed  or  maimed.  Railroad  corporations  paying  to  the  owner 

of  the  land  through  or  along  which  their  road  is  located 

an  agreed  price  for  making  and  maintaining  such  fence, 

or  paying  the  cost  of  such  fence,  with  the  award  of  damages 

allowed  for  the  right  of  way  for  such  railroad,  are  relieved 

and  exonerated  from  all  claims  for  damages  arising  out 

of   the   killing   or   maiming   any   animals    of   persons    who 

thus  fail  to  construct  and  maintain  such  fence;    and  the 

owners  of  such  animals  are  responsible  for  any  damages 

or  loss  which  may  accrue  to  such  corporation  from  such 

animals   being   upon   their   railroad   track,    resulting  from 

the  nonconstruction  of  such  fence,  unless  it  is  shown  that 

such  loss  or  damage  occurred  through  the  negligence  or 

fault  of  the  corporation,  its  officers,  agents,  or  employees. 

En.  March  21,  1872. 

Cal.Rep.Cit.      64,113;      65,318;      86,284;      94,  570 ;   104,     28; 
110,  456;   114,  508;   126,  518;   126,  573. 

§  485.     Regulations    of   trains.      Penalty.     A    bell,    of   at 

least   twenty    pounds'    weight,    must    be   placed    on    each 

locomotive  engine,  and  be  rung  at  a  distance  of  at  least 

eighty  rods  from  the  place  where  the  railroad  crosses  any 

street,  road,  or  highway,  and  be  kept  ringing  until  it  has 

crossed  such  street,  road,  or  highway;   or  a  steam-whistle 

must  be  attached,  and  be  sounded,  except  in  cities,  at  the 

like  distance,  and  be  kept  sounding  at  intervals  until  it 

has   crossed   the   same,   under   a  penalty   of  one   hundred 

dollars  for  every  neglect,  to  be  paid  by  the  corporation 

operating  the  railroad.which  may  be  recovered  in  an  action 

prosecuted  by  the  district  attorney  of  the  proper  county, 

for  the  use  of  the  state.    The  corporation, is  also  liable  for 

all  damages  sustained  by  any  person,  and  caused  by  its 

locomotives,    train,   or  cars,    when   the    provisions   of   this 

section  are  not  complied  with.     En.  March  21,  1872. 

Cal.Rep.Cit.      52,  604;      61,  328;      S5,  296;      86,  3TS :      9S,  311; 
122.  567  ;   132,  256. 


§§487-489  BUSINESS.    HOW    CONDUCTED.  166 

Omitting  to  ring  the  bell,  a  misdemeanor:  Pen,  Code, 
sec.  390. 

§  487.  Passenger  refusing  to  pay  fare.  If  any  passenger 
refuses  to  pay  his  fare,  or  to  exhibit  or  surrender  his 
ticket,  when  reasonably  requested  so  to  dp,  the  conductor 
and  employees  of  the  corporation  may  put  him  and  his 
baggage  out  of  the  cars,  using  no  unnecessary  force,  at  any 
usual  stopping-place,  or  near  any  dwelling-house,  on  stop- 
ping the  train.     En.  March  21,  1872. 

Cal.Rep.Cit.   65,  628;   97,  5. 

Refusing  to  pay  fare:  See,  generally,  post,  sees.  2187  et 
seq. 

§  488.  Officers  to  wear  badge.  Every  conductor,  bag- 
gage-master, engineer,  brakeman,  or  other  employee  of  any 
railroad  corporation,  employed  on  a  passenger  train  or  at 
stations  for  passengers,  must  wear  upon  his  hat  or  cap,  or 
in  some  conspicuous  place  on  the  breast  of  his  coat,  a 
badge,  indicating  his  office  or  station,  and  the  initial  letters 
of  the  name  of  the  corporation  by  which  he  is  employed. 
No  collector  or  conductor,  without  such  badge,  is  au- 
thorized to  demand  or  to  receive  from  any  passenger  any 
fare,  toll,  or  ticket,  or  exercise  any  of  the  powers  of  his 
office  or  station;  and  no  other  officer  or  employee,  without 
such  badge,  has  any  authority  to  meddle  or  interfere  with 
any  passenger  or  property.    En.  March  21,  1872. 

Cal.Rep.Cit.  109,   104. 

§  489.  Rates  of  charges.  All  railroad  corporations  must 
fix  and  publish  their  rates  of  charges  for  freightage  and 
fares  from  one  depot  to  another,  on  their  various  lines  of 
road  in  this  state,  graduated  as  follows: 

1.  One  rate  of  charges  per  mile  for  a  distance  of  one 
hundred  miles  or  over; 

2.  One  rate  for  a  distance  of  seventy-five  and  less  than 
one  hundred  miles,  charging  not  exceeding  ten  per  cent 
per  mile  more  than  the  first  rate; 

3.  One  rate  for  a  distance  of  fifty  and  less  than  seventy- 
five  miles,  charging  not  exceeding  fifteen  per  cent  per 
mile  more  than  the  first  rate; 

4.  One  rate  for  a  distance  of  twenty-five  and  less  than 
fifty  miles,  charging  not  exceeding  twenty  per  cent  per 
mile  more  than  the  first  rate; 


157  BUSINESS,     HOW     CONDUCTED.  §  490 

5.  One  rate  for  a  distance  not  exceeding  twenty-five 
miles,  charging  not  exceeding  twenty-five  per  cent  per 
mile  more  than  the  first  rate. 

But  in  no  case,  nor  in  any  class  of  charges  hereinbefore 
named,  shall  any  railroad  corporation  charge  or  receive 
more  than  ten  cents  per  mile  for  each  passenger,  nor 
fifteen  cents  per  mile  for  each  ton  of  freight  transported 
on  its  road.  For  every  transgression  of  these  limita- 
tions the  corporation  is  liable,  to  the  party  suffering 
thereby,  treble  the  entire  amount  of  fare  or  freightage  so 
charged  to  such  party.  In  no  case  is  the  corporation 
required  to  receive  less  than  twenty-five  cents  for  any  one 
lot  of  freight  for  any  distance.    En.  March  21,  1872. 

Cal.Rep.Cit.  105,  545;   105,  546;   105,  547;   105,  548;   105,  549; 
105,  555. 

Asking  or  receiving  illegal  fare  a  misdemeanor:  Pen. 
Code,  sec.  525. 

Rates  of  charges  on  street  railroads:    Post,  sec.  501. 

Power  of  railroad  corporations  to  charge  tolls  or  com- 
pensation:   Sec.  465.  subd.  8. 

§  490.  Passenger  tickets,  how  issued,  and  to  be  good 
for  six  months.  Every  railroad  corporation  must  provide, 
and  on  being  tendered  the  fare  therefor  fixed,  as  provided 
in  the  preceding  section,  furnish  to  every  person  desiring 
a  passage  on  their  passenger  cars  a  ticket,  which  entitles 
the  purchaser  to  a  ride,  and  to  the  accommodations  pro- 
vided on  their  cars,  from  the  depot  or  station  where  the 
same  is  purchased  to  any  other  depot  or  station  on  the 
line  of  their  road.  Every  such  ticket  entitles  the  holder 
thereof  to  ride  on  their  passenger  cars  to  the  station  or 
depot  of  destination,  or  any  intermediate  station,  and  from 
any  intermediate  station  to  the  depot  of  destination  desig- 
nated in  the  ticket,  at  any  time  within  six  months  there- 
after. Any  corporation  failing  so  to  provide  and  furnish 
tickets,  or  refusing  the  passage  which  the  same  calls  for 
when  sold,  must  pay  to  the  person  so  refused  all  actual 
damages  caused  thereby,  with  reasonable  counsel  fees  ex- 
pended in  recovering  same.  En.  March  21,  1872.  Am'd. 
1900-01.  600. 

Cal.Rep.Cit.  105,  537;   105,  540;   105,  542;   105,  543;   105,  544; 

105,  545;   105,  546;   105,  547;   105.  548;   105,  549;   105,  550; 

105,  551;   105,  552;   105,  553;    105,  554;   105,  555;   105,  556; 

132.  411;   132,  413;   132.  416;   132,  418;   132,  420. 


§5  491-404  BUSINESS,    HOW    CONDUCTED.  158 

§491.  Character  of  rails  to  be  used.  All  railroads,  other 
than  street  railroads  and  those  used  exclusively  tor  carry- 
ing freight  or  for  mining  purposes,  built  by  corporations 
organized  under  this  chapter,  must  |pe  constructed  of  the 
best  quality  of  iron  or  steel  rail,  known  as  T  or  H  rail, 
or  other  pattern  of  equal  utility.  En.  March  21,  1872. 
Am'd.  1873-4,  212. 

Cal.Rep.Cit.  132,   678. 

§  492.  Elevated  or  underground  railways.  The  legis- 
lative or  other  body  to  whom  is  intrusted  the  government 
of  the  county,  city  and  county,  city,  or  town,  under  such 
regulations,  restrictions,  and  limitations,  and  upon  such 
terms  and  payment  of  license  tax  as  the  county,  city  and 
county,  city,  or  town  authority  may  provide,  may  grant 
franchises  for  the  construction  of  elevated  or  underground 
railroad  tracks  over,  across,  or  under  the  streets  and  pub- 
lic highways  of  any  such  county,  city  and  county,  city,  or 
town,  for  the  term  not  exceeding  fifty  years;  provided, 
that  before  granting  such  franchise  there  shall  be  pre- 
sented to  such  legislative  or  other  body  a  petition  signed 
by  the  owners  of  a  majority  of  the  landed  property,  other 
than  public  property,  on  the  line  of  said  elevated  portion 
applied  for.     En.  Stats.  1895,  242. 

§493.  To  apply  to  all  railroad  companies.  This  act 
shall  apply  to  all  railroad  companies  heretofore  and  here- 
after incorporated.     En.   Stats.   1895,   242. 

§  494.  Sale  of  property  to  another  railroad.  Any  rail- 
road corporation,  person  or  persons,  firm  or  corporation, 
owning  any  railroad  in  this  state,  may  sell,  convey,  and 
transfer  its  property  and  franchises,  or  any  part  thereof, 
to  any  other  railroad  corporation,  whether  organized  under 
the  laws  of  this  state  or  of  any  other  state  or  territory, 
or  under  any  act  of  congress;  and  any  other  such  railroad 
corporation  receiving  such  conveyance  may  hold  and  ope- 
rate such  railroad  franchises  and  property  within  this  state, 
build  and  operate  extensions  and  branches  thereof,  and 
thereunto  exercise  the  right  of  eminent  domain,  and  do 
any  other  business  in  connection  therewith,  as  fully  and 
effectually  to  all  intents  and  purposes  as  if  such  corpora- 


159  BUSINESS,    HOW    CONDUCTED.  §  494 

tion  were  organized  under  the  laws  of  this  state;  provided, 
that  before  such  sale,  conveyance,  or  transfer  shall  be- 
come operative,  an  agreement  In  writing  must  be  executed 
by  the  parties  thereto,  containing  the  terms  and  conditions 
of  the  purchase  and  sale,  and  its  execution  must  be  author- 
ized by  the  board  of  directors  and  ratified  by  three  fourths 
of  the  stockholders  of  each  of  the  railroad  companies  that 
are  parties  to  such  conveyance  and  transfer,  and  said 
agreement  or  conveyance  shall  be  recorded  in  each  county 
through  which  said  road  or  roads  pass  in  this  state;  and 
provided  further,  that  no  sale,  conveyance,  or  transfer 
under  this  act  shall  relieve  the  franchise  or  property  sold, 
conveyed,  or  transferred,  from  the  liability  of  the  grantor 
contracted  or  incurred  in  the  operation,  use,  or  enjoyment 
of  such  franchise  or  any  of  its  privileges;  provided,  that 
thifs  section  shall  not  authorize  any  corporation  to  pur- 
chase any  railroad  property  operated  in  competition  with 
it;  and  provided  further,  that  any  o^  all  established  rates 
for  fares  and  tolls  for  carrying  passengers  or  freight  be- 
tv/een  any  points  upon  any  railroad  purchased  under  the 
provisions  of  this  act,  shall  not  be  increased  v.ithout  the 
consent  of  the  governmental  authority  in  which  is  vested 
by  law  the  power  to  regulate  fares  and  freights;  and  pro- 
vided further,  that  whenever  a  railroad  corporation,  which 
has  purchased  any  line  of  road  under  this  act,  shall  for 
the  purposes  of  competing  with  any  other  common  carrier 
lower  its  rates  for  transportation  of  passengers  or  freight 
from  one  point  to  another  upon  such  line  purchased,  such 
reduced  rates  shall  not  be  again  raised  or  increased  from 
such  standard  without  the  consent  of  the  governmental 
authority  in  which  shall  be  vested  the  power  to  regulate 
tares  and  freights;  and  provided  further,  that  for  every 
violation  of  the  provisions  of  this  act  on  the  part  of  di- 
rectors or  governing  officers  of  said  corporation,  the  state 
shall  be  entitled  to  recover  from  such  offending  railroad 
company  the  sum  of  ten  thousand  dollars.  It  is  hereby 
declared  to  be  the  duty  of  the  attorney-general  of  the  state, 
in  the  event  of  any  such  violation,  to  demand  and  collect 
from  such  company  the  said  penalty;  and  he  is  hereby 
authorized  and  empowered  to  prosecute  all  the  necessary 
actions  in  the  name  of  the  people  of  the  state  of  Califor- 
nia against  such  company  in  the  courts  of  the  state.     All 


§494  BUSINESS,    HOW    CONDUCTED.  160 

money  so  collected  shall  be  paid  into  the  general  fund  of 
this  state.     En.  Stats.  1903,  50. 

This  was  a  new  section  adopted  in  1903.  There  was  an- 
other section  494  adopted  in  1899  covering  the  same  ground. 
It  is  probably  superseded  by  the  above  section,  but  as  the 
section  adopted  in  1903  makes  no  mention  of  it,  and  as  the 
question  as  to  whether  it  is  in  force  or  not  can  only  be  de- 
termined by  judicial  decision,  it  is  here  appended: 

Any  railroad  corporation  owning  any  railroad  in  this  state 
may  sell,  convey,  and  transfer  its  property  and  franchises,  or 
any  part  thereof,  to  any  other  railroad  corporation,  whether 
organized  under  the  laws  of  this  state  or  of  any  other  state 
or  territory,  or  under  any  act  of  congress;  and  any  other 
such  railroad  corporation  receiving  such  conveyance  may 
hold  and  operate  such  railroad  franchises  and  property 
within  this  state,  build  and  operate  extensions  and 
branches  thereof,  and  thereunto  exercise  the  right  of  emi- 
nent domain,  and  do  sCny  other  business  in  connection 
therewith,  as  fully  and  effectually  to  all  intents  and  pur- 
poses as  if  such  corporation  were  organized  under  the  laws 
of  this  state;  provided,  that  such  sale,  conveyance  and 
transfer  shall  be  made  within  three  years  from  the  date 
this  act  shall  take  effect;  and  provided  further,  that  before 
such  sale,  conveyance  or  transfer  shall  become  operative, 
an  agreement  in  writing  must  be  executed  by  the  parties 
thereto,  containing  the  terms  and  conditions  of  the  pur- 
chase and  sale,  and  its  execution  must  be  authorized  by 
the  board  of  directors  and  ratified  by  three  fourths  of  the 
stockholders  of  each  of  the  railroad  companies  that  are 
parties  to  such  conveyance  and  transfer,  and  said  agree- 
ment or  conveyance  shall  be  recorded  in  each  county 
through  which  said  road  or  roads  pass  in  this  state;  and 
provided  further,  that  no  sale,  conveyance  or  transfer 
under  this  act  shall  relieve  the  franchise  or  property  sold, 
conveyed  or  transferred  from  the  liability  of  the  grantor 
contracted  or  incurred  in  the  operation,  use  or  enjoyment 
of  such  franchise  or  any  of  its  privileges;  provided,  that 
this  section  shall  not  authorize  any  corporation  to  pur- 
chase any  railroad  property  operated  in  competition  with 
it;  and  provided,  however,  corporations  operating  any 
railroad  or  part  of  a  railroad  under  lease  shall  be  entitled 
to  purchase  such  leased  property  (whether  competitive  or 


161  BUSINESS,    HOW    CONDUCTED.  §  494 

otherwise)  under  the  provisions  and  subject  to  the  condi- 
tions of  this  act;  and  provided  further,  that  any  or  all 
established  rates  for  fares  and  tolls  for  carrying  passen- 
gers or  freight  between  any  points  upon  any  railroad  pur- 
chased under  the  provisions  of  this  act,  shall  not  be  in- 
creased without  the  consent  of  the  governmental  authority 
in  which  is  vested  by  law  the  power  to  regulate  fares 
and  freights;  and  provided  further,  that  whenever  a  rail- 
road corporation,  which  has  purchased  any  line  of  road 
under  this  act,  shall  for  the  purpose  of  competing  with  any 
other  common  carrier  lower  its  rates  for  transportation  of 
passengers  or  freight  from  one  point  to  another  upon 
such  line  purchased,  such  reduced  rates  shall  not  be  again 
raised  or  increased  from  such  standard  without  the  consent 
of  the  governmental  authority  in  which  shall  be  vested 
the  power  to  regulate  fares  and  freights;  and  provided 
further,  that  for  every  violation  of  the  provisions  of  this 
act  on  the  part  of  directors,  or  other  governing  officers 
of  said  corporation,  the  state  shall  be  entitled  to  recover 
from  such  offending  railroad  company  the  sum  of  ten 
thousand  dollars.  It  is  hereby  declared  to  be  the  duty 
of  the  attorney-general  of  the  state,  in  the  event  of  any 
such  violation,  to  demand  and  collect  from  such  company 
the  said  penalty;  and  he  is  hereby  authorized  and  em- 
powered to  prosecute  all  the  necessary  actions  in  the  name 
of  the  people  of  the  state  of  California  against  such  com- 
pany in  the  courts  of  the  state.  All  money  so  collected 
shall  be  paid  into  the  general  fund  of  this  state.  En.  Stats. 
1899,  178. 


§  497  STREET    RAILROAD    CORPORATIONS.  162 

TITLE    IV. 

STREET    RAILROAD    CORPORATIONS. 

S  497.  Authority  to  lay  street  railroad  track,  how  obtained.  Limi- 
tations and  restrictions. 

§  498  Restrictions  and  limitations.     Manner  of  constructing  tracks. 

§   499.  Two  corporations  may  use  the  same  track. 

§  500.  Crossing  tracks.     Obstructions. 

§  501.  Rates  of  fare,  speed,  etc. 

§  502.  Time  allowed  for  commencing  and  completing  work.  Penalty. 
Extension  of  time. 

S  503.  May  make  further  regulations  and  rules. 

g   504.  Penalty  for  overcharging. 

§   505.  To  provide  and  furnish  passenger  tickets.     Penalty. 

§  506.  Proof  of  agency. 

S   507.  Preserved  rights. 

§   508.  License  to  be  paid  to  city  or  town. 

§   509.  Track  for  grading  purposes. 

§  510.  Provisions  of  title  III  applicable  to  street  railroads. 

§  511.  Title  applicable  to  natural  persons  alike  with  corporations. 

§497.  Authority  to  lay  street  railroad  track,  how  ob- 
tained. Limitations  and  restrictions.  Authority  to  lay 
railroad  tracks  through  the  streets  and  public  highways 
of  any  incorporated  city,  city  and  county,  or  town,  may  be 
obtained  for  a  term  of  years  not  exceeding  fifty,  from  the 
trustees,  council,  or  other  body  to  whom  is  intrusted  the 
government  of  the  city,  city  and  county  or  town,  under 
such  restrictions  and  limitations,  and  upon  such  terms  and 
payment  of  license  tax,  as  the  city,  city  and  county,  or 
town  authority  may  provide.  In  no  case  must  permission 
be  granted  to  propel  cars  upon  such  tracks  otherwise 
than  by  electricity,  horses,  mules,  or  by  wire  ropes  running 
under  the  streets  and  moved  by  stationary  engines,  unless 
for  special  reasons  in  this  title  hereinafter  mentioned; 
provided,  however,  that  such  board  or  body  in  granting 
the  right,  or  at  any  time  after  the  same  is  granted,  to  use 
electricity  or  any  other  of  said  modes,  shall  have  power  to 
impose  such  terms,  restrictions,  and  limitations  as  to  the 
use  of  streets  and  the  construction  and  mode  of  operating 
such  electric  and  other  roads  as  may,  by  such  board  or 
body,  be  deemed  for  the  public  safety  or  welfare.  En. 
March  21,  1872.    Am'd.  1875-6,  76;  1891,  12. 

Cal.Rep.Cit.     57,167;     57,175;     57,176;     90,     38;      90,     3» ; 
91,  340;     91,  454;   105,     92;  105,     93;   105,     94;   117,  611; 
117,  616. 

Act  limiting  time  within  which  franchise  may  be  grant- 
ed :     See  post,  Appendix,  title  Railroads. 


163  STREET    RAILROAD    CORPORATIONS.  §§  498-500 

Act  validating  ordinance  granting  franchise:  See  post, 
Appendix,   title  Railroads. 

Act  empowering  railroad  to  use  electricity  or  steam: 
See  post,  Appendix,  title  Railroads. 

§  498.  Restrictions  and  limitations.  Manner  of  con- 
structing tractcs.  The  city  or  town  authorities,  in  grant- 
ing the  right  of  way  to  street  railroad  corporations,  in  addi- 
tion to  the  restrictions  which  they  are  authorized  to  im- 
pose, must  require  a  strict  compliance  with  the  following 
conditions,  except  in  the  cases  of  prismoidal  or  other 
elevated  railways.  In  such  cases,  said  railway  shall  be 
required  to  be  constructed  in  such  a  manner  as  will  present 
the  least  obstruction  to  the  freedom  of  the  streets  on 
which  it  may  be  erected  when  allowed  by  the  granting 
power: 

First,  to  construct  their  tracks  on  those  portions  of 
streets  designated  in  the  ordinance  granting  the  right, 
which  must  be,  as  nearly  as  possible,  in  the  middle  thereof. 

Second,  to  plank,  pave,  or  macadamize  the  entire  length 
of  the  street  used  by  their  track,  between  the  rails,  and 
for  two  feet  on  each  side  thereof,  and  between  the  tracks, 
if  there  be  more  than  one,  and  to  keep  the  same  constantly 
in  repair,  flush  with  the  street,  and  with  good  crossings. 

Third,  that  the  tracks  must  not  be  more  than  five  feet 
wide  within  the  rails,  and  must  have  a  space  between  them 
sufficient  to  allow  the  cars  to  pass  each  other  freely.  En. 
March  21,  1872.     Am'd.  1873-4,  212;  1875-6,  77. 

Cal.Rep.Cit.   57,  518;    87,  599;    89,  309;   91,  454. 

§  499.  Two  corporations  may  use  the  same  track.  Two 
lines  of  street  railway,  operated  under  different  manage- 
ments, may  be  permitted  to  use  the  same  street,  each  pay- 
ing an  equal  portion  for  the  construction  of  the  tracks  and 
appurtenances  used  by  said  railways  jointly;  but  in  no  case 
must  two  lines  of  street  railway,  operated  under  different 
managements,  occupy  and  use  the  same  street  or  tracks  for 
a  distance  of  more  than  five  blocks  consecutively.  En. 
March  21,  1872.     Am'd.  1891,  13. 

Cal.Rep.Cit.      54,     74;      54,     75;      57,168;      57.170;      57,177; 
91,  452;      91,  454;   115,  297;   129,  182;    135,  659. 

§  500.  Crossing  tracks.  Obstructions.  ,Any  proposed 
railroad  track  may  be  permitted  to  cross  any  track  already 


§§  501,  502  STREET    RAILROAD    CORPORATIONS.  164 

constructed,  the  crossing  being  made  as  provided  in  chap- 
ter II,  title  III,  of  this  part.  In  laying  down  the  track  and 
preparing  therefor,  not  more  than  one  block  must  be  ob- 
structed at  any  one  time,  nor  for  a  longer  period  than  ten 
working  days.     En.  March  21,  1872. 

Crossing  other  railroads:     See  ante,  sees.  465  et  seq. 

§  501.  Rates  of  fare,  speed,  etc.  The  rates  of  fare  on 
the  cars  must  not  exceed  ten  cents  for  one  fare  for  any 
distance  under  three  miles,  and  in  municipal  corporations 
of  the  first  class  must  not  exceed  five  cents  for  each  pas- 
senger per  trip  of  any  distance  in  one  direction,  either 
going  or  coming,  along  any  part  of  the  whole  length  of  the 
road  or  its  connections.  The  cars  must  be  of  the  most 
approved  construction  for  the  comfort  and  convenience  of 
passengers,  and  provided  with  brakes  to  stop  the  same, 
when  required.  A  violation  of  the  provisions  of  this  sec- 
tion subjects  the  corporation  to  a  fine  of  one  hundred 
dollars  for  each  offense.  En.  March  21,  1872.  Am'd.  1903, 
172. 

Cal.Rep.Cit.  97,  563;   134,  4S5. 

Rates  of  fare  for  railroad  corporations:      See  sec.  489. 

Act  limiting  and  fixing  rates  of  fares:  See  post,  Appen- 
dix, title  Railroads. 

Act  permitting  letter  carriers  to  ride  free:  See  post. 
Appendix,  title  Railroads. 

§  502.  Time  allowed  for  commencing  and  completing 
work.  Penalty.  Extension  of  time.  Work  to  construct  the 
railroad  must  be  commenced  in  good  faith  within  not  more 
than  one  year  from  the  date  of  the  taking  effect  of  the 
ordinance  granting  the  right  of  way,  and  said  work  must 
be  completed  within  not  more  than  three  years  after  the 
taking  effect  of  such  ordinance;  provided,  that  the  govern- 
ing body  of  such  municipal  corporation  at  the  time  of  grant- 
ing said  right  of  way  shall  have  the  power  to  fix  the  time 
for  either  the  commencing  or  completion,  or  both,  of  said 
■work;  not,  however,  to  a  time  less  than  six  months  for 
commencing,  and  not  less  than  eighteen  months  for  com- 
pleting the  same.  A  failure  to  comply  with  either  of  the 
foregoing  provisions  of  this  section,  or  with  either  of  the 
provisions  of  the  ordinance  granting  said  right  of  way, 
works  a  forfeitlire  of  the  right  of  way,  and  also  of  the 


165  STREET    RAILROAD    CORPORATIONS.  §§  503-505 

franchise,  unless  the  uncompleted  portion  is  abandoned  by 
the  person  or  corporation  to  whom  said  right  of  way  is 
granted,  with  the  consent  of  the  authorities  granting  the 
right  of  way,  such  abandonment  and  consent  to  be  in 
writing.  The  authority  granting  the  right  of  way  shall 
have  the  power  to  grant  an  extension  of  time  for  the  com- 
pletion of  said  work,  if  it  appear  that  the  work  has  been 
commenced  within  the  time  fixed,  and  prose<;uted  in  good 
faith;  but  no  extension  of  time  shall  be  granted  for  the 
commencement  of  said  work,  and  shall  not  be  granted  for 
more  than  one  year  for  the  completion  of  the  same.  All 
extensions  of  time  shall  be  in  writing,  and  made  a  matter 
of  record  in  the  municipality.  Provided  further,  that  this 
act  shall  not  in  any  way  affect  any  franchise  or  right  of 
way  granted  before  its  passage.  En.  March  21,  1872.  Am'd. 
1895,  17. 

Cal.Rep.Cit.     57,  178;     91,  341;   101,  337;   117,  611;   117,  612; 
117,  616. 

Forfeiture  for  failure  to  commence  work,  of  railroad  cor- 
porations:   See  sec.  468;  generally,  see  sec.  358. 

§  503.  May  make  further  regulations  and  rules.  Cities 
and  towns  in  or  through  which  street  railroads  run  may 
make  such  further  regulations  for  the  government  of  such 
street  railroads  as  may  be  necessary  to  a  full  enjoyment 
of  the  franchise  and  the  enforcement  of  the  conditions  pro- 
vided herein.    En.  March  21,  1872. 

Cal.Rep.Cit.  128,  436. 

§  504.  Penalty  for  overcharging.  Any  corporation,  or 
agent  or  employee  thereof,  demanding  or  charging  a 
greater  sum  of  money  for  fare  on  the  cars  of  such  street 
railroad  than  that  fixed,  as  provided  in  this  title,  forfeits 
to  the  person  from  whom  such  sum  is  received,  or  who  is 
thus  overcharged,  the  sum  of  two  hundred  dollars,  to  be 
recovered  in  a  civil  action,  in  any  justice's  court  having 
jurisdiction  thereof,  against  the  corporation.  En,  March 
21,  1872. 

§  505.  To  provide  and  furnish  passenger  tickets.  Pen- 
alty. Every  street  railroad  corporation  must  provide,  and, 
on  request,  furnish  to  all  persons  desiring  a  passage  on  its 
cars,  any  required  quantity  of  passenger  tickets  or  checks, 


5§  506-508  STREET    RAILROAD    CORPORATIONS.  1C6 

each  to  be  good  for  one  ride.  Any  corporation  failing  to 
provide  and  furnish  ticliets  or  checks  to  any  person  desir- 
ing to  purchase  the  same  at  not  exceeding  the  rate  herein- 
before described,  shall  forfeit  to  such  person  the  sum  of 
two  hundred  dollars,  to  be  recovered  as  provided  in  the 
preceding  section;  provided,  that  the  provisions  of  this 
section  shall  not  apply  to  such  street  railroad  corpora- 
tions as  charge  but  five  cents  fare.  En.  March  21,  1872. 
Am'd.  1873-4,  213;  1883,  84. 

§  506.  Proof  of  agency.  Upon  the  trial  of  an  action  for 
any  of  the  sums  foi'feited,  as  provided  in  the  two  preced- 
ing sections,  proof  that  the  person  demanding  or  receiv- 
ing the  money  as  fare,  or  for  the  sale  of  the  ticket  or 
check,  was  at  the  time  of  making  the  demand  or  receiving 
the  money,  engaged  in  an  office  of  the  corporation,  or 
vehicle  belonging  to  the  corporation,  shall  be  prima  facie 
evidence  that  such  person  was  the  agent,  servant,  or  em- 
ployee of  the  corporation,  to  receive  the  money  and  give 
the  ticket  or  check  mentioned.  En.  March  21,  1872.  Am'd. 
1873-4,  213. 

§  507.  Reserved  rights.  In  every  grant  to  construct  street 
railroads,  the  right  to  grade,  sewer,  pave,  macadamize,  or 
otherwise  improve,  alter,  or  repair  the  streets  or  highways, 
is  reserved  to  the  corporation,  and  cannot  be  alienated  or 
impaired;  such  work  to  be  done  so  as  to  obstruct  the  rail- 
road as  little  as  possible,  and,  if  required,  the  corporation 
must  shift  its  rails  so  as  to  avoid  the  obstructions  made 
thereby.     En.  March  21,  1872.     Am'd.  1873-4,  214. 

§  508.  License  to  be  paid  to  city  or  town.  Each  street 
railroad  corporation  must  pay  to  the  authorities  of  the  city, 
town,  county,  or  city  and  county,  as  a  license  upon  each 
car,  such  sum  as  the  authorities  may  fix,  not  exceeding 
fifty  dollars  per  annum  in  the  city  of  San  Francisco,  nor 
more  than  twenty-five  dollars  per  annum  in  other  cities 
or  towns.  Where  any  street  railroad  connects  or  runs 
through  two  or  more  cities  or  towns,  a  proportionate  or 
equal  share  of  such  license  tax  must  be  paid  to  each  of  the 
cities  or  towns;  and  no  such  license  tax  is  due  the  county 
authorities  where  the  same  is  paid  to  any  city  or  town 
authority.    En.  March  21,  1872. 

Licenses:    See  Pol.  Code,  sees.  2356  et  seq. 


167  STREET    RAILROAD    CORPORATIONS.  §§  509-511 

§  509.  Track  for  grading  purposes.  The  right  to  lay 
down  a  track  for  grading  purposes,  and  maintain  the  same 
for  a  period  not  to  exceed  three  years,  may  be  granted  by 
the  corporate  authorities  of  any  city  or  town,  or  city  and 
county,  or  supervisors  of  any  city  or  county,  but  no  such 
track  must  remain  more  than  three  years  upon  any  one 
street;  and  it  must  be  laid  level  with  the  street,  and  must 
be  operated  under  such  restrictions  as  not  to  interfere  with 
the  use  of  the  street  by  the  public.  The  corporate  author- 
ities of  any  city  or  town,  or  city  and  county,  may  grant  the 
right  to  use  steam  or  any  other  motive  power  in  propelling 
the  cars  used  on  such  grading  track,  when  public  conveni- 
ence or  utility  demands  it,  but  the  reasons  therefor  must 
be  set  forth  in  the  ordinance,  and  the  right  to  rescind  the 
ordinance  at  any  time  reserved.    En.  March  21,  1872. 

§510.  Provisions  of  title  III  applicable  to  street  rail- 
roads. Street  railroads  are  governed  by  the  provisions  of 
title  III  of  this  part,  so  far  as  they  are  applicable,  unless 
such  railroads  are  therein  specially  excepted.  En.  March 
21,  1872.     Am'd.  1873-4,  214. 

Cal.Rep.Cit.  109,  577;   109,  583;   109,  584;   125,  454. 

Title  III:    See  sees.  454  et  seq. 

§511.  Title  applicable  to  natural  persons  alike  with  cor- 
porations. When  a  street  railroad  is  constructed,  owned, 
or  operated  by  any  natural  person,  this  title  is  applicable 
to  such  person  in  like  manner  as  it  is  applicable  to  cor- 
porations.   En.  March  21,  1872. 

Cal.Rep.Cit.   98,  314;   132,  678. 


§§512,  5ia  WAGON    ROAD    CORPORATIONS.  168 


TITLE    V. 

WAGON    ROAD    CORPORATIONS. 

§  512.  Three  commissioners  to  act  with  surveyor. 

§  513.  Survey  and  map  to  be  filed  and  approved  by  supervisors. 

§  514.  Tolls,    etc.,    to    be    collected.      Penalty    for    taking    unlawful 

tolls. 

§  515.  No  tolls  to  be  charged  on  highways  or  public  roads. 

§   516.  Rates  of  toll  to  be  posted  at  gate. 

§   517.  Toll  gatherer   may   detain   persons   until   they   pay  toll. 

§   518.  Toll  gatherer  not  to  detain  any  person  unnecessarily. 

§   519.  Persons   avoiding   tolls   to   pay   five   dollars. 

§   520.  Penalties   for  trespasses  on  property  of  corporation. 

§   521.  Revenue,  how  appropriated.     Tolls  to  be  reduced,  etc. 

§   522.  May  mortgage  and  hypothecate  corporate  property. 

§   523.  This  title  applies  to  natural  persons  as  well  as  corporations. 

§  512.  Three  commissioners  to  act  with  surveyor.  Where 
a  corporation  is  formed  for  the  construction  and  mainten- 
ance of  a  wagon  road,  the  road  must  be  laid  out  as  follows: 
Three  commissioners  must  act  in  conjunction  with  the  sur- 
veyor of  the  corporation,  two  to  be  appointed  by  the  board 
of  supervisors  of  the  county  through  which  the  road  is  to 
run,  and  one  by  the  corporation,  who  must  lay  out  the 
proposed  road  and  report  their  proceedings,  together  with 
the  map  of  the  road,  to  the  supervisors,  as  provided  in  the 
succeeding  section.    En.  March  21,  1872.    Am'd.  1873-4,  214. 

Cal.Rep.Cit.   95.   86. 

Wagon  road  corporation:    See   ante,  sees.  291-294. 

§  513.  Survey  and  map  to  be  filed  and  approved  by  su- 
pervisors. When  the  route  is  surveyed,  a  map  thereof  must 
be  submitted  to  and  filed  with  the  board  of  supervisors  of 
each  county  through  or  into  which  the  road  runs,  giving 
its  general  course  and  the  principal  points  to  or  by  which 
it  runs,  and  its  width,  which  must  in  no  case  exceed  one 
hundred  feet,  and  the  supervisors  must  either  approve  or 
reject  the  survey.  If  approved,  it  must  be  entered  of  rec- 
ord on  the  journal  of  the  board  and  such  approval  author- 
izes the  use  of  all  public  lands  and  highways  over  which 
the  survey  runs;  but  the  board  of  supervisors  must  require 
the  corporation,  at  its  own  expense,  and  the  corporation 
must  so  change  and  open  the  highway  so  taken  and  used 
as  to  make  the  same  as  good  as  they  were  before  the  ap- 
propriation thereof;  and  must  so  construct  all  crossings 
of  public  highways  over  and  by  its  road,  and  its  toll  gates, 


169  WAGON    ROAD    CORPORATIONS.  §§  514-516 

as  not  to  hinder  or  obstruct  the  use  of  the   same.     En. 
March  21,  1872. 

§  514.  Tolls,  etc.,  to  be  collected.  Penalty  for  taking  un- 
lawful tolls.  All  wagon  road  corporations  may  bridge  or 
keep  ferries  on  streams  on  the  line  of  their  road,  and  must 
do  all  things  necessary  to  keep  the  same  in  repair.  They 
may  take  such  tolls  only  on  their  roads,  feri-ies,  or  bridges, 
as  are  fixed  by  the  board  of  supervisors  of  the  proper  county 
through  which  the  road  passes,  or  in  which  the  ferry  or 
bridge  is  situate,  except  that  in  the  counties  of  Klamath, 
Butte,  Del  Norte,  Plumas,  Humboldt,  and  Sierra,  the  di- 
rectors may  fix  their  own  tolls,  but  in  no  case  must  the 
tolls  be  more  than  suflicient  to  pay  fifteen  per  cent,  nor 
less  than  ten  per  cent  per  annum  on  the  cost  of  construc- 
tion, after  paying  for  repairs  Snd  other  expenses  for  attend- 
ing to  the  roads,  bridges,  or  ferries.  If  tolls,  other  than 
as  herein  provided,  are  charged  or  demanded,  the  corpora- 
tion forfeits  its  franchise,  and  must  pay  to  the  party  so 
charged  one  hundred  dollars  as  liquidated  damages.  En. 
March  21,  1872.     Am'd.  1873-4,  214;  1873-4,  272. 

Cal.Rep.Cit.   88,   633. 

This  section  was  also  amended  by  act  of  March  30,  1874. 
Amendments  1873-4,  p.  214;  but  by  section  287  of  that  act, 
p.  269,  other  laws  passed  at  that  session  superseded  the 
provisions  of  that  act,  leaving  the  preceding  act  of  March 
28,  1874,  in  force  sixty  days  after  its  passage. 

Sale  of  franchise  under  execution:    See   ante,  sec.  388. 

Toll  roads:    Pol.  Code,  sees.  2779  et  seq. 

§515.  No  tolls  to  be  charged  on  highways  or  public 
roads.  When  any  highway  or  public  road  is  taken  and 
used  by  any  wagon  road  corporation  as  a  part  of  its  road, 
the  corporation  must  not  place  a  toll  gate  on  or  take  tolls 
for  the  use  of  such  highway  or  public  road  by  teamsters, 
travelers,  drovers,  or  any  one  transporting  property  over 
the  same.    En  March  21,  1872. 

§516.  Rates  of  toll  to  be  posted  at  gate.  The  corpora- 
tion must  afiix  and  keep  up,  at  or  over  each  gate,  or  in 
some  conspicuous  place,  so  as  to  be  conveniently  read,  a 

Civ.   Code-^ 


§§  517-520  WAGON    ROAD    CORPORATIONS.  170 

printed  list  showinf:',,  first,  the  date  when  the  franchise  or 
privilege  under  which  the  right  to  collect  tolls  is  claimed, 
was  granted  and  the  term  of  duration  of  said  franchise; 
second,  the  dale  upon  which  rates  of  tolls  were  last  fixed 
by  the  board  of  supervisors;  and,  third,  the  rates  of  tolls 
levied  and  demanded.  Failure  to  comply  with  the  provi- 
sions of  this  act  shall  work  an  immediate  forfeiture  of 
franchise.     En.  March  21,  1872.     Am'd.  1900-01,  5. 

§517.  Toll  gatherer  may  detain  persons  until  they  pay 
toll.  Each  toll  gatherer  may  prevent  from  passing  through 
his  gate  persons  leading  or  driving  animals  or  vehicles  sub- 
ject to  toll,  until  they  shall  have  paid,  respectively,  the 
tolls  authorized  to  be  collected.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,   602. 

§  518.  Toll  gatherer  not  to*detain  any  person  unneces- 
sarily. Every  toll  gatherer  who,  at  any  gate,  unreasonably 
hinders  or  delays  any  traveler  or  passenger  liable  to  the  pay- 
ment of  toll,  or  demands  or  receives  from  any  person  more 
than  he  is  authorized  to  collect,  for  each  offense  forfeits 
the  sum  of  twenty-five  dollars  to  the  person  aggrieved. 
En.  March  21,  1872. 

§  519.  Persons  avoiding  tolls  to  pay  five  dollars.  Every 
person  who,  to  avoid  the  payment  of  the  legal  toll,  with 
his  team,  vehicle,  or  horse,  turns  out  of  a  wagon,  turnpike, 
or  plank  road,  or  passes  any  gate  thereon  or  ground  adja- 
cent thereto,  and  again  enters  upon  such  road  for  each  of- 
fense forfeits  the  sum  of  five  dollars  to  the  corporation 
injured.    En.  March  21,  1872. 

§  520.  Penalties  for  trespasses  on  property  of  corpora- 
tion.   Every  person  who: 

1.  Willfully  breaks,  cuts  down,  defaces,  or  injures  any 
milestone  or  post  on  any  wagon,  turnpike,  or  plank  road; 
or,  . 

2.  Willfully  breaks  or  throws  down  any  gate  on  such 
road;  or, 

3.  Digs  up  or  injures  any  part  of  such  road,  or  anything 
thereunto  belonging;   or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon 
without  having  paid  the  legal  toll;  ^ 


171  WAGON     ROAD     CORPORATIONS.  §§  521-523 

For  each  offense  forfeits  to  the  corporation  injured  the 
sum  of  twenty-five  dollars,  in  addition  to  the  damages  re- 
sulting from  his  wrongful  act.    En.  March  21,  1872. 

§  521.  Revenue,  how  appropriated.  Tolls  to  be  reduced, 
etc.  The  entire  revenue  derived  from  the  road  shall  be 
appropriated:  first,  to  repayment  to  the  corporation  of  the 
costs  of  its  construction,  together  with  the  incidental  ex- 
penses incurred  in  collecting  tolls  and  keeping  the  read  in 
repair;  and,  second,  to  the  payment  of  the  dividend  among 
its  stockholders,  as  provided  in  section  five  hundred  and 
fourteen.  When  the  repayment  of  the  cost  of  construction 
is  completed,  the  tolls  must  he  so  reduced  as  to  raise  no 
more  than  an  amount  sufficient  to  pay  said  dividend,  and 
incidental  expenses,  and  to  keep  the  road  in  good  repair. 
En.  March  21,  1872.     Am'd.  1873-4,  215. 

§  522.  May  mortgage  and  hypothecate  corporate  prop- 
erty. The  corporation  may  mortgage  or  hypothecate  its 
road  and  other  property  for  funds  with  which  to  construct 
or  repair  their  road,  but  no  mortgage  or  hypothecation  is 
valid  or  binding  unless  at  least  twenty-five  per  cent  of  the 
capital  stock  subscribed  has  been  paid  in  and  invested  in 
the  construction  of  the  road  and  appurtenances,  and  then 
only  after  an  affirmative  vote  of  two  thirds  of  the  capital 
stock  subscribed.     En.  March  21,  1872. 

Cal.Rep.Cit.   80,   341. 

§  523.  This  title  applies  to  natural  persons  as  well  as 
corporations.  When  a  wagon,  turnpike,  or  planii  road  is 
constructed,  owned,  or  operated  by  any  natural  person, 
this  title  is  applicable  to  such  person  in  like  manner  as  it 
is  applicable  to  corporations.     En.  March  21,  lSv2. 

Cal.Rep.Cit.   79.  168;   80,  341;   98,  313. 

Toll  roads:    See  Pol.  Code,  sees.  2779-2832. 


§§  528-530  BRIDGE,    FERRY,    ETC.,    CORPORATIONS.  172 

TITLE    VI. 

BRIDGE,  FERRY,  WHARF,   CHUTE,   AND  PIER  CORPORATIONS. 

§  528.     Corporation  to  obtain  license  from  supervisors. 

§   529.      In   what  contingencies  corporate   existence   ceases. 

§  530.  President  and  secretary  to  make  annual  report,  and  what 
to  contain.      Damages  for  failing  to  report. 

§  531.  This  title  to  apply  to  natural  persons  alike  with  corpora- 
tions. 

§  528.     Corporation   to   obtain    license   from    supervisors. 

No  corporation  must  construct  or  take  tolls  on  a  bridge, 
ferry,  wharf,  chute,  or  pier  until  authority  is  granted  there- 
for by  the  supervisors.    En.  March  21,  1872. 

Cal.Rep.Cit.  136,  49. 

Public  ferries  and  toll  bridges:  See  Pol.  Code,  sees.  2843 
et  seq. 

§  529.     In  what  contingencies  corporate  existence  ceases. 

Every  such  corporation  ceases  to  be  a  body  corporate: 

1.  If,  within  six  months  from  filing  its  articles  of  incor- 
poration, it  has  not  obtained  such  authority  from  the  board 
of  supervisors;  and  if,  within  one  year  thereafter,  it  has 
not  commenced  the  construction  of  the  bridge,  wharf, 
chute,  or  pier,  and  actually  expended  thereon  at  least  ten 
per  cent  of  the  capital  stock  of  the  corporation; 

2.  If,  within  three  years  from  filing  the  articles  of  in- 
corporation, the  bridge,  wharf,  chute,  or  pier  is  not  com- 
pleted; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  cor- 
poration is  destroyed,  it  is  not  reconstructed  and  ready 
for  use  within  three  years  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running 
order  within  three  months  after  authority  is  obtained  to 
establish  it,  or  if  at  any  time  thereafter  it  ceases,  for  a  like 
term  consecutively,  to  perform  the  duties  imposed  by  law. 
En.  March  21,  1872. 

§  530.  President  and  secretary  to  malce  annual  report, 
and  what  to  contain.  Damages  for  failing  to  report.  The 
president  and  secretary  of  every  bridge,  ferry,  wharf, 
chute,  or  pier  corporation  must  annually,  under  oath,  re- 
port to  the  board  of  supervisors  of  the  county  in  which  the 
articles  of  incorporation  are  filed: 


173  BRIDGE,    FERRY,    ETC..    CORPORATIONS.  §  531 

1.  The  cost  of  constructing  and  providing  all  necessary 
appendages  and  appurtenances  for  their  bridge,  ferry, 
wharf,  chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since 
Its  construction  for  repairs  and  incidental  expenses; 

3.  The  amount  of  their  capital  stock,  how  much  paid  in, 
and  how  much  actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls  and 
from  all  other  sources,  stating  each  separately; 

5.  The  amount  of  dividends  made,  and  the  indebtedness 
of  the  corporation,  specifying  for  what  it  was  incurred; 

6.  Such  other  facts  and  particulars  respecting  the  busi- 
ness of  the  corporation  as  the  board  of  supervisors  may 
require. 

This  report  the  president  and  secretary  must  cause  to  be 
published  for  four  weeks  in  a  daily  newspaper  published 
nearest  the  bridge,  ferry,  wharf,  pier,  or  chute,  if  required 
by  order  of  the  board  of  supervisors.  A  failure  to  make 
such  report  subject.^  the  corporation  to  a  penalty  of  two 
hundred  dollars;  and  for  every  week  permitted  to  elapse 
after  such  failure,  an  additional  penalty  of  fifty  dollars; 
payable  in  each  case  to  the  county  from  which  the  author- 
ity of  the  corporation  was  derived.  All  such  cases  must 
be  reported  by  the  board  of  supervisors  to  the  district  at- 
torney, who  must  commence  an  action  therefor.  En.  March 
21,  1872. 

§531.  This  title  to  apply  to  natural  persons  alike  with 
corporations.  When  a  bridge,  ferry,  wharf,  chute,  or  pier 
is  constructed,  operated,  or  owned  by  a  natural  person,  this 
title  is  applicable  to  such  persons  in  like  manner  as  it  is 
ap'plicable  to  corporations.    En.  March  21,  1872. 

Cal.Rep.Cit.   98,   314. 

General  provisions:  Public  ferries  and  toll  bridges, 
Pol.  Code,  sees.  2843-2895;  wharves,  chutes,  and  piers, 
Pol.  Code,  sees.  2906-2921. 


§5  536-538  TELEGRAPH    CORPORATIONS.  174 


TITLE    VII. 

TELEGRAPH    CORPORATIONS. 

5  536.     May  use  right  of  way  along  waters,  roads,  and  highways. 
§   537.      Persons  liable  for  damages  for  injuring  telegraph   property. 
§   538.      Party   guilty   of   willful    and    malicious    injury    liable   to   one 

hundred  times  actual  damages. 
§  539.     Conditions    on   which    damage   to   subaqueous   cable   may    bo 

recovered. 
§   540.      May  dispose  of  certain  rights. 
§  541.     Rates  of  charges  to  be  fixed,  and  how  published.    (Repealed.) 

§  536.  May  use  right  of  way  along  waters,  roads,  and 
highways.  Telegraph  corporations  may  construct  lines  of 
telegraph  along  and  upon  any  public  road  or  highway, 
along  or  across  any  of  the  waters  or  lands  within  this 
state,  and  may  erect  poles,  posts,  piers,  or  abutments  for 
supporting  the  insulators,  wires,  and  other  necessary  fix- 
tures of  their  lines,  in  such  manner  and  at  such  points  as 
not  to  incommode  the  public  use  of  the  road  or  highway, 
or  interrupt  the  navigation  of  the  waters.  En.  March  21, 
1872. 

For  an  act  to  facilitate  telegraphic  communication  be- 
tween America  and  Asia,  approved  February  13,  1872,  see 
Stats.  1871-2,  97. 

Telegraph  companies  are  common  carriers:  See  sees. 
2207  et  seq. 

§  537.  Persons  liable  for  damages  for  injuring  telegraph 
property.  Any  person  who  injures  or  destroys,  through 
want  of  proper  care,  any  necessary  or  useful  fixture  of  any 
telegraph  corporation,  is  liable  to  the  corporation  for  all 
damages  sustained  thereby.  Any  vessel  which,  by  dragging 
its  anchor  or  otherwise,  breaks,  injures,  or  destroys  the 
subaqueous  cable  of  a  telegraph  corporation,  subjects  its 
owner  to  the  damages  hereinbefore  specified.  En.  March 
21,  1872. 

Cal.Rep.Cit.  82,   602. 

§  538.  Party  guilty  of  willful  and  malicious  injury  liable 
to  one  hundred  times  actual  damages.  And  person  who 
willfully  and  maliciously  does  any  injury  to  any  telegraph 
property  mentioned  in  the  preceding  section,  is  liable  to 
the  corporation  for  one  hundred  times  the  amount  of  actual 


175  WATER     AND     CANAL    CORPORATIONS.  §§  539-548 

damages  sustained  thereby,  to  be  recovered  in  any  court 
of  competent  jurisdiction.    En.  March  21,  1872. 

§  539.  Conditions  on  which  damage  to  subaqueous  cable 
may  be  recovered.  No  telegraph  corporation  can  recover 
damages  for  the  breaking  or  injury  of  any  subaqueous 
telegraph  cable,  unless  such  corporation  has  previously 
erected  on  either  bank  of  the  waters  under  which  the  cable 
is  placed,  a  monument,  indicating  the  place  where  the 
cable  lies,  and  publishes  for  one  month  in  some  newspaper 
most  likely  to  give  notice  to  navigators,  a  notice  giving  a 
description  and  the  purpose  of  the  monuments,  and  the 
general  course,  landings,  and  termini  of  the  cable.  En. 
March  21,  1872. 

§  540.  May  dispose  of  certain  rights.  Any  telegraph 
corporation  may  at  any  time,  with  the  consent  of  the  per- 
sons holding  two  thirds  of  the  issued  stock  of  the  corpora- 
tion, sell,  lease,  assign,  transfer,  or  convey  any  rights, 
privileges,  franchises,  or  property  of  the  corporation,  ex- 
cept its  corporate  franchise.    En.  March  21,  1872. 

§  541.  Rates  of  charges  to  be  fixed,  and  how  published. 
(Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  216. 


TITLE    VIII. 

WATER  AND  CANAL  CORPORATIONS. 

§  548.  Corporation  may  obtain  contract  to  supply  city  or  town. 

§  549.  Water  corporations,  duties,  etc.     Rates. 

§  550.  Right  to  use  streets,  ways,  alleys,  and  roads. 

I  551.  To  build  and  keep  bridges  in   repair. 

§  552.  Right  of  purchaser  to  use  water  for  irrigating. 

§  548.  Corporation  may  obtain  contract  to  supply  city 
or  town.  No  corporation  formed  to  supply  any  city,  city 
and  county,  or  town  with  water  must  do  so  unless  pre- 
viously authorized  by  an  ordinance  of  the  authorities 
thereof,  or  unless  it  is  done  in  conformity  with  a  contract 
entered  into  between  the  city,  city  and  county,  or  town 
and  the  corporation.  Contracts  so  made  are  valid  and  bind- 
ing in  law,  but  do  not  take  from  the  city,  city  and  county, 
or  town  the  right  to  regulate  the  rates  for  water,  nor  must 


51549-551  WATER     AND     CANAL     CORPORATIONS.  176 

any  exclusive  right  be  granted.  No  contract  or  grant  must 
be  made  for  a  term  exceeding  fifty  years.  En.  March  21, 
1872. 

Water  rights:    See  sees.  1410  et  seq. 

§  549.  Water  corporations,  duties,  etc.  Rates.  All  cor- 
porations formed  to  supply  water  to  cities  or  towns  must 
furnish  pure  fresh  water  to  the  inhabitants  thereof,  for 
family  uses,  so  long  as  the  supply  permits,  at  reasonable 
rates  and  without  distinction  of  persons,  upon  proper  de- 
mand therefor;  and  must  furnish  water  to  the  extent  of 
their  means,  in  case  of  fire  or  other  great  necessity,  free 
of  charge.  The  rates  to  be  charged  for  water  must  be  de- 
termined by  commissioners,  to  be  selected  as  follows:  two 
by  the  city  and  county  or  city  or  town  authorities,  or, 
when  there  are  no  city  or  town  authorities,  by  the  board 
of  supervisors  of  the  county,  and  two  by  the  water  com- 
pany; and  in  case  a  majority  cannot  agree  to  the  valuation, 
the  four  commissioners  must  choose  a  fifth  commissioner; 
if  they  cannot  agree  upon  a  fifth,  then  the  county  judge  of 
the  county  must  appoint  such  fifth  person.  The  decision 
of  the  majority  of  the  commissioners  shall  determine  the 
rates  to  be  charged  for  water  for  one  year,  and  until  new 
rates  are  established.  The  board  of  supervisors,  or  the 
proper  city  or  town  authorities,  may  prescribe  proper  rules 
relating  to  the  delivery  of  water,  not  inconsistent  with  the 
laws  of  the  state.     En.  March  21,  1872.     Am'd.  1873-4,  216. 

Cal.Rep.Cit.  52,  134;   52,  141. 

§  550.  Right  to  use  streets,  ways,  alleys,  and  roads. 
Any  corporation  created  under  the  provisions  of  this  part, 
for  the  purposes  named  in  this  title,  subject  to  the  reason- 
able direction  of  the  board  of  supervisors,  or  city  or  town 
authorities,  as  to  the  mode  and  manner  of  using  such 
right  of  way,  may  use  so  much  of  the  streets,  ways,  and 
alleys  in  any  town,  city,  or  city  and  county,  or  any  public 
road  therein,  as  may  be  necessary  for  laying  pipes  for 
conducting  water  into  any  such  town,  city,  or  city  and 
county,  or  through  or  into  any  part  thereof.  En.  March 
21,  1872. 

§  551.  To  build  and  keep  bridges  in  repair.  Every 
water  or   canal   corporation  must   construct  and   keep   in 


177  WATER     AND     CANAL     CORPORATIONS.  §  552 

good  repair,  at  all  times,  for  public  use,  across  their  canal, 
flume,  or  water  pipe,  all  of  the  bridges  that  the  board  of 
supervisors  of  the  county  in  which  such  canal  is  situated 
may  require,  the  bridges  being  on  the  lines  of  public  high- 
ways and  necessary  for  public  uses  in  connection  with  such 
highways;  and  all  water-works  must  be  so  laid  and  con- 
structed as  not  to  obstruct  public  highways.  En.  March 
21,  1S72. 

Cal.Rep.C'it.   68,  359  ;   98,  183. 

See  the  earlier  acts  upon  canal  and  ditch  corporations: 
Act  May  14,  1862,  Stats.  1862,  541;  and  the  subsequent  act, 
April  2,  1870,  Stats.  1870,  660.  See,  also,  Statutes  in  force, 
title  Water  Commissioners. 

Act  of  March  30,  1872,  relative  to  formation  of  canal  and 
ditch  corporations.  Stats.  1871-2,  p.  733. 

§  552.     Right   of   purchaser  to    use   water   for    irrigating. 

Whenever  any  corporation,  organized  under  the  laws  of 
this  state,  furnishes  water  to  irrigate  lands  which  said 
corporation  has  sold,  the  right  to  the  flow  and  use  of  said 
water  is  and  shall  remain  a  perpetual  easement  to  the 
land  scr  sold,  at  such  rates  and  terms  as  may  be  established 
by  said  corporation  in  pursuance  of  law.  And  whenever 
any  person  who  is  cultivating  land,  on  the  line  and  within 
the  flow  of  any  ditch  owned  by  such  corporation,  has  been 
furnished  water  by  it,  with  which  to  irrigate  his  land,  such 
person  shall  be  entitled  to  the  continued  use  of  caid  water, 
upon  the  same  terms  as  those  who  have  purchased  their 
land  of  the  corporation.     En.  Stats.  1875-6,  77. 

Cal.Rep.Cit.      56,  440;      56,  441;      90,  286;   112,  434;   112,  435; 
129,  448;    130,  313. 

Act  regulating  sale,  rental,  and  distribution  of  appro- 
priated water:     See  post.  Appendix,  title  Water  Companies. 

Irrigation,  statutes  relating  to:  See  General  Laws,  title 
Irrigation. 


§§557-559  HOMESTEAD    CORPORATIONS.  178 


TITLE    IX. 

HOMESTEAD    CORPORATIONS. 

{  557.     Time  of  corporate  existence. 

§  558.  By-laws  must  specify  time  for  and  amount  of  payment  of 
installments,  and  penalty  for  failure  to  pay.  By-lawa 
to  be  furnished  to  any  member  on  demand. 

§  559.      Advertisement   and   sale   of   delinquent   and   forfeited   shares. 

§  560.      May  borrow  and   loan  funds — how,   and  for  what  time. 

5  561.      Minor  children,  wards,   and  married  women  may  own   sto  k. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  exceeding  two 
hundred  thousand  dollars. 

§  563.      When  corporation  is  terminated,  and  how. 

I  564.     Payment  of  premiums. 

I  565.     Annual  report  to  be  published. 

I  566.     Publication  in  certain  cases. 

§  557.  Time  of  corporate  existence.  Corporations  or- 
ganized for  the  purpose  of  acquiring  lands  in  large  tracts, 
paying  off  incumbrances  thereon,  improving  and  subdivid- 
ing them  into  homestead  lots  or  parcels,  and  distributing 
them  among  the  shareholders,  and  for  the  accumulation 
of  a  fund  for  such  purposes,  are  Ivnown  as  homestead  cor- 
porations, and  must  not  have  a  corporate  existence  for  a 
longer  period  than  ten  years.    En.  March  21,  1872. 

Time  of  corporate  existence:  See  post,  Appendix,  title 
Homesteads. 

§  558.  By-laws  must  specify  time  for  and  amount  of  pay- 
ment of  installments,  and  penalty  for  failure  to  pay.  By- 
laws to  be  furnished  to  any  member  on  demand.  Such 
corporations  must  specify  in  their  by-laws  the  times  when 
the  installments  of  the  capital  stock  are  payable,  the 
amount  thereof,  and  the  fines,  penalties,  or  forfeitures  in- 
curred in  case  of  default.  A  printed  copy  of  the  articles 
of  incorporation  and  by-laws  must  be  furnished  to  any 
shareholder  on  demand.    En.  March  21,  1872. 

§559.  Advertisement  and  sale  of  delinquent  and  for- 
feited shares.  Whenever  any  shares  of  stock  are  declared 
forfeited,  by  resolution  of  the  board  of  directors,  the  di- 
rectors may  advertise  the  same  for  sale,  giving  the  name 
of  the  subscriber  and  the  number  of  shares,  by  notice  of 
not  less  than  three  weeks,  published  at  least  once  a  week 
in  a  newspaper  of  general  circulation  in  the  city,  town,  or 
county  where  the  principal  place  of  business  of  such  cor- 


179  HOMESTEAD    CORPORATIONS.  §§  560,  561 

poration  is  located.  Such  sale  must  be  made  at  auction, 
under  the  direction  of  the  secretary  of  the  company.  The 
corporation  may  be  a  bidder,  and  the  shares  must  be  dis- 
posed of  to  the  highest  bidder  for  cash.  No  defect,  in- 
formality, or  irregularity  in  the  proceedings  respecting 
the  sale  invalidates  it,  if  notice  is  given  as  herein  provided. 
After  the  sale  is  made  the  secretary  must,  on  receipt  of 
the  purchase  money,  transfer  to  the  purchaser  the  shares 
sold,  and  after  deducting  from  the  proceeds  of  such  sale 
all  installments  then  due,  and  all  expenses  and  charges  of 
sale,  must  hold  the  residue  subject  to  the  order  of  the 
delinquent  subscriber.    En.  March  21,  1872. 

§  560.  May  borrow  and  loan  funds — how,  and  for  what 
time.  Homestead  corporations  may  borrow  money  for  the 
purposes  of  the  corporation,  not  exceeding  at  any  one  time 
one  fourth  of  the  aggregate  amount  of  the  shares  or  parts 
of  shares  actually  paid  in,  and  the  income  thereof;  no 
greater  rate  of  interest  must  be  paid  therefor  than  twelve 
per  cent  per  annum.  For  the  purpose  of  completing  the 
purchase  of  lands  intended  to  be  divided  and  distributed, 
they  may  borrow  on  the  security  of  their  shares  on  the 
land  thus  purchased,  or  that  owned  by  the  corporation  at 
the  time  of  procuring  the  loan,  any  sum  of  money  which, 
together  with  the  interest  contracted  to  become  due 
thereon,  will  not  exceed  ninety  per  cent  of  the  unpaid 
amount  subscribed  by  the  shareholders;  but  no  loan  must 
be  made  to  the  corporation  for  a  term  extending  'beyond 
that  of  its  existence.    En.  March  21,  1872. 

§  561.  Minor  children,  wards,  and  married  women  may 
own  stock.  Such  shares  of  stock  in  homestead  corpora- 
tions as  may  be  acquired  by  children,  the  cost  of  which, 
and  the  deposits  and  assessments  on  which  are  paid  from 
the  personal  earnings  of  the  children,  or  with  gifts  from 
persons  other  than  their  male  parents,  may  be  taken  and 
held  for  them  by  their  parents  or  guardians.  Married 
women  may  hold  such  shares  as  they  acquire  with  their 
personal  earnings,  or  those  of  their  children,  voluntarily 
bestowed  therefor,  or  from  property  bequeathed  or  given 
to  them  by  persons  other  than  their  husbands.  En.  March 
21,  1872. 


5§  5C2-564  HOMESTEAD     CORPORATIONS.  180 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  ex- 
ceeding two  hundred  thousand  dollars.  Homestead  cor- 
porations must  not  purchase  and  sell,  or  otherwise  acquire 
and  dispose  of  real  property,  or  any  interest  therein,  or  any 
personal  property,  for  the  sole  purpose  of  speculation  or 
profit.  Nor  must  any  such  corporation  at  any  one  time  own 
or  hold,  in  trust  or  otherwise,  for  its  purposes,  real  prop- 
erty, or  any  interest  therein,  which  in  the  aggregate  ex- 
ceeds in  cash  value  the  sum  of  two  hundred  thousand  dol- 
lars. For  any  violation  of  the  provisions  of  this  section 
corporations  forfeit  their  corporate  rights  and  powers.  On 
the  application  of  any  citizen  to  a  court  of  competent 
jurisdiction  such  forfeiture  may  be  adjudged,  and  the 
judgment  carries  with  it  costs  of  the  proceedings.  En. 
March  21,  1872. 

§  563.  When  corporation  is  terminated,  and  how.  Ex- 
cept for  the  purpose  of  winding  up  and  settling  its  affairs, 
every  homestead  corporation  must  terminate  at  the  expi- 
ration of  the  time  fixed  for  its  existence  in  the  articles  of 
incorporation,  or  when  dissolved  as  provided  in  this  part. 
No  dividend  of  funds  must  be  made  on  termination  of  its 
corporate  existence,  until  its  debts  and  liabilities  are  paid; 
and  upon  the  final  settlement  of  the  affairs  of  the  corpora- 
tion, or  upon  the  termination  of  its  corporate  existence, 
the  directors,  in  such  manner  as  they  may  determine,  must 
divide  its  property  among  its  shareholders  in  proportion  to 
tlieir  respective  interests,  or,  upon  the  application  of  a 
majority  in  interest  of  the  stockholders,  must  sell  and  dis- 
pose of  any  or  all  of  the  real  estate  of  the  corporation 
upon  such  terms  as  may  be  most  conducive  to  the  inter- 
ests of  all  the  stockholders,  and  must  convey  the  same  to 
the  purchaser,  and  distribute  the  proceeds  among  the 
shareholders,  or  may  at  any  time,  when  best  for  the  inter- 
ests of  all  the  shareholders,  cause  the  lands  of  the  cor- 
poration to  be  subdivided  into  lots  and  distributed,  by  sale 
for  premiums,  at  auction  or  otherwise,  among  the  share- 
holders.   En.  March  21,  1872. 

§  564.  Payment  of  premiums.  Such  premiums  on  lots 
may  be  made  payable  at  the  time  they  are  bid  off.  and.  if 
not  so  paid  on  any  lot  of  land,  the  directors  may  imme- 


ISl  HOMESTEAD     CORPORATIONS.  §§  565,  566 

diately  offer  the  same  for  sale  again.  If  made  payable  at 
a  future  day,  and  any  shareholder  fails  to  pay  his  bid  on 
the  day  the  same  is  made  due  and  payable,  the  directors 
may  advertise  and  sell  the  shares  of  stock  representing 
the  lots  of  land  on  which  the  premiums  remain  unpaid,  in 
the  manner  provided  in  the  by-laws  for  the  sale  of  shares 
on  account  of  delinquent  installments  and  premiums.  En. 
March  21,  1872. 

§  565.  Annual  report  to  be  published.  The  actual  finan- 
cial condition  of  all  homestead  corporations  must,  by  the 
directors  thereof,  be  published  annually  in  the  [a]  news- 
paper published  at  the  principal  place  of  business  of  the 
corporation,  for  four  weeks,  if  published  in  a  weekly,  and 
two  weeks,  if  published  in  a  daily.  The  statement  must 
be  made  up  to  the  end  of  each  year,  and  must  be  verified 
by  the  oath  of  the  president  and  secretary,  showing  the 
items  of  property  and  liabilities.     En.  March  21,  1872. 

§566.  Publication  in  certain  cases.  In  any  case  in 
which  a  publication  is  required,  and  no  newspaper  is  pub- 
lished at  the  principal  place  of  business,  the  publication 
may  be  made  in  a  paper  published  in  an  adjoining  county. 
En.  March  21,  1872. 

See  act  of  March  23,  1874,  relative  to  homestead  cor- 
porations. Appendix,  title  Homesteads. 


55  D71,  572  SAVINGS    AXD    LOAN    CORPORATIONS.  182 


TITLE    X. 

SAVINGS    AND    LOAN    CORPORATIONS. 

S  571.  May  loau  money — on  what  terms,  bow,  and  to  whom,  and 
bow   long. 

§  572.      Capital  stock,   and   rights- and  privileges  thereof. 

§  573.  No  dividends,  except  from  surplus  profits.  To  contract  no 
liability,   except   for  deposits. 

§  574.  Property  which  may  be  owned  by  corporations.  Restrictions 
m  purchases  as  provided  above. 

§  575.  Married  women  and  minors  may  own  stock  in  their  own 
right. 

§  576.  M:n  issue  transferable  certificates  of  deposit.  Special  cer- 
tificates. 

§  577.      To  provide  reserve  fund  for  the  payment  of  losses. 

§   57S.      Prohibition  on  director  and  ofRcer,   and  what  vacates  oCace. 

§   579.      Definition  of  phrase  "create  debts." 

§  580.      Banks,  amount  of  capital  stock  required. 

ij   581.      Restrictions  on  savings  banks. 

J   5S2.      True  names  of  persons  engaged  in  banking  must  be  shown. 

§   583.      Dividends— Surplus  funds. 

S  583a.  Capital  actually  paid  up  must  be  published. 

§  571.  May  loan  money — on  what  terms,  how,  and  to 
whom,  and  how  long.  Corporations  organized  for  the  pur- 
pose of  accumulating  and  loaning  the  funds  of  their  mem- 
bers, stockholders,  and  depositors,  may  loan  and  invest  the 
funds  thereof,  receive  deposits  of  money,  loan,  invest,  and 
collect  the  same,  with  interest,  and  may  repay  depositors 
with  or  without  interest.  No  such  corporation  must  loan 
money,  except  on  adequate  security  on  real  or  personal 
property,  and  such  loan  must  not  be  for  a  longer  period 
than  ten  years.     En.  March  21,  1872.     Am'd.  1900-01,  295. 

Cal.Rep.Cit.   64,  123;    97,  222;   126,  415;   136,  442. 

Banks  cannot  be  created  except  under  general  laws: 
Const.  Cal.,  art.  XII,  sec.  5. 

Act  relating  to  banking  corporations  repealed:  See 
post.  Appendix,  title  Banks  and  Banking. 

Act  compelling  bank  to  publish  statement  of  unclaimed 
deposits:     See  post.  Appendix,  title  Banks  and  Banking. 

Act  providing  for  dissolution  and  winding  up  of  savings 
banks  and  trust  companies:  See  post,  Appendix,  title 
Banks  and  Banking. 

§572.  Capital  stock,  and  rights  and  privileges  thereof. 
When  savings  and  loan  corporations  have  a  capital  stock 
specified  in  their  articles  of  incorporation,  certificates  of 
the  ownership  of  shares  may   be  issued;    and  the   rights 


183  SAVINGS     AND     LOAN     CORPOP.ATIONS.  §S  573,  574 

and  privileges  to  be  accorded  to,  and  the  obligations  to  be 
imposed  upon,  such  capital  stock,  as  distinct  from  those  of 
depositors,  must  be  fixed  and  defined,  either  in  the  articles 
of  incorporation  or  in  the  by-laws.    En.  March  21,  1872. 

Cal.Rep.Cit.   64,  123;   109,  401;   117,  160. 

Increase  of  capital  stock:  See  post.  Appendix,  title 
Banks  and  Banking. 

§  573.  No  dividends,  except  from  surplus  profits.  To 
contract  no  liability,  except  for  deposits.  The  directors  of 
savings  and  loan  corporations  may,  at  such  times  and  in 
such  manner  as  the  by-laws  prescribe,  declare  and  pay 
dividends  of  so  much  of  the  profits  of  the  corporation,  and 
of  the  interest  arising  from  the  capital  stock  and  deposits, 
as  may  be  appropriated  for  that  purpose  under  the  by- 
laws or  under  their  agreements  with  depositors.  The  di- 
rectors must  not  contract  any  debt  or  liability  against  the 
corporation  for  any  purpose  whatever,  except  for  deposits. 
The  capital  stock  and  the  assets  of  the  corporation  are  a 
security  to  depositors  and  stockholders,  depositors  having 
the  priority  of  security  over  the  stockholders,  but  the  by- 
laws may  provide  th^t  the  same  security  shall  extend  to 
deposits  made  by  stockholders.    En.  March  21,  1872. 

Cal.Rep.Cit.   64,  123;   109,  401;   117,  160;   119,  343. 

Act  prohibiting  dividing  or  withdrawing  of  capital  stock: 
See  post,  Appendix,  title  Banks  and  Banking, 

§  574.  Property  which  may  be  owned  by  corporations. 
Restrictions  in  purchases  as  provided  above.  Savings  and 
loan  corporations  may  purchase,  hold  and  convey  real  and 
personal  property  as  follows: 

1.  The  lot  and  building  in  which  the  business  of  the  cor- 
poration is  carried  on,  the  cost  of  which  must  not  exceed 
one  hundred  thousand  dollars;  except,  on  a  vote  of  two 
thirds  of  the  stockholders  the  corporation  may  increase 
the  sum  to  an  amount  not  exceeding  two  hundred  and  fifty 
thousand  dollars; 

2.  Such  as  may  have  been  mortgaged,  pledged  or  con- 
veyed to  it  in  trust,  for  its  benefit  in  good  faith,  for  money 
loaned  in  pursuance  of  the  regular  business  of  the  corpora- 
tion; 

3.  Such    as   may   have   been   purchased   at   sales   under 


§§  575,  576  SAVINGS    AND    LOAN     CORPORATIONS.  184 

pledges,  mortgages  or  deeds  of  trust  made  for  its  benefit, 
for  money  so  loaned,  and  such  as  may  be  conveyed  to  it 
by  borrowers  in  satisfaction  and  discbarge  of  loans  made 
thereon; 

4.  No  such  corporation  must  purchase,  hold  or  convey 
real  estate  in  any  other  case  or  for  any  other  purpose;  and 
all  real  estate  described  in  subdivision  three  of  this  sec- 
tion must  be  sold  by  the  corporation  within  ten  years  after 
the  title  thereto  is  vested  in  it  by  purchase  or  otherwise; 

5.  No  such  corporation  must  purchase,  own,  or  sell  per- 
sonal property,  except  such  as  may  be  requisite  for  its 
immediate  accommodation  for  the  convenient  transaction 
of  its  business,  mortgages  on  real  estate,  bonds,  securities 
or  evidences  of  indebtedness,  public  or  private,  gold  and 
silver  bullion  and  United  States  mint  certificates  of  ascer- 
tained value  and  evidences  of  debt  issued  by  the  United 
States; 

6.  No  such  corporation  must  purchase,  hold  or  convey 
bonds,  securities  or  evidences  of  indebtedness,  public  or 
private,  except  bonds  of  the  United  States,  of  the  state 
of  California,  and  of  the  counties,  cities,  or  cities  and 
counties,  or  towns,  or  school  districts  of  the  state  of 
California,  or  bonds  of  railroad  or  street  railroad  cor- 
porations owning  property  and  having  their  principal  place 
of  business  in  the  state  of  California,  unless  such  corpora- 
tion has  a  capital  stock  or  reserve  fund  paid  in  of  not  less 
than  one  hundred  thousand  dollars.  En.  March  21,  1872. 
Am'd.  1873-4,  273;   1900-01,  659. 

Cal.Rep.Cit.      64,  123;   109,  401;   117,  160;   126.  416;   133,  613. 
Subd.   6—136,  442. 

§  575.  Married  women  and  minors  may  own  stock  in 
their  own  right.  Married  women  and  minors  may,  in  their 
own  right,  make  and  draw  deposits  and  draw  dividends, 
and  give  valid  receipts  therefor.     En.  March  21,  1872. 

Cal.Rep.Cit.     64.  123;   117,  160;   119,  343;   134,  405. 

§  576.  iVlay  issue  transferable  certificates  of  deposit. 
Special  certificates.  Savings  and  loan  corporations  may 
issue  general  certificates  of  deposit,  which  are  transferable, 
as  in  other  cases,  by  indorsement  and  delivery;  may  issue, 
when  requested  by  the  depositor,  special  certificates, 
acknowledging  the  deposit  by  the  person  therein  named  of 


185  SAVINGS    AND    LOAN    CORPORATIONS.  §§  577,  578 

a  specified  sum  of  money,  and  expressly  providing  on  the 
face  of  sucli  certificate  tliat  tiie  sum  so  deposited  and 
therein  named  may  be  transferred  only  on  the  books  of 
the  corporation;  payment  thereafter  made  by  the  cor- 
poration to  the  depositor  named  in  such  certificate,  or  to 
his  assignee  named  upon  the  books  of  the  corporation, 
or,  in  case  of  death,  to  the  legal  representative  of  such 
person,  of  the  sum  for  which  such  special  certificate  was 
issued,  discharges  the  corporation  from  all  further  liability 
on  account  of  the  money  so  paid.  En.  March  21,  1872. 
Cal.Rep.Cit.  64,  123;   109.  403;   117.  160;   119,  341;   136,  512. 

§  577.     To  provide  reserve  fund  for  the  payment  of  losses. 

Savings  and  loan  corporations  may  prescribe  by  their  by- 
laws the  time  and  conditions  on  which  repayment  is  to 
be  made  to  depositors;  but  whenever  there  is  any  call  by 
depositors  for  repayment  of  a  greater  amount  than  the 
corporation  may  have  disposable  for  that  purpose,  the 
directors  or  officers  thereof  must  not  make  any  new  loans 
or  investments  of  the  funds  of  the  depositors,  or  of  the 
earnings  thereof,  until  such  excess  of  call  has  ceased.  The 
directors  of  any  such  corporation  having  no  capital  stock 
must  retain,  on  each  dividend  day,  at  least  five  per  cent 
of  the  net  profits  of  the  corporation,  to  constitute  a  reserve 
fund,  which  must  be  invested  in  the  same  manner  as 
other  funds  of  the  corporation,  and  must  be  used  toward 
paying  any  losses  which  the  corporation  may  sustain  in 
pursuing  its  lawful  business.  The  corporation  may  provide 
by  its  by-laws  for  the  disposal  of  any  excess  in  the  reserve 
fund  over  one  hundred  thousatid  dollars,  and  the  final 
disposal,  upon  the  dissolution  of  the  corporation,  of  the 
reserve  fund,  or  of  the  remainder  thereof,  after  payment 
of  losses.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,  602  ;   64,  123 ;   109,  401 ;   117,  160. 

§578.  Prohibition  on  director  and  officer,  and  what 
vacates  office.  No  director  or  officer  of  any  savings  and 
loan  corporation  must,  directly  or  indirectly,  for  himself 
or  as  the  partner  or  agent  of  others,  borrow  any  of  the 
deposits  or  other  funds  of  such  corporation,  nor  must  he 
become  an  indorser  or  surety  for  loans  to  others,  nor  in 
any  manner  be  an  obligor  for  moneys  borrowed  of  or 
loaned   by   such   corporation.     The  office  of  any   director 


5§579,  5S0  SAVINGS     AND     LOAN     CORPORATIONS.  186 

or  officer  who  acts  in  contravention  of  the  provisions  of 

this  section  immediately  thereupon  becomes  vacant.     En. 

March  21,  1872. 

Cal.Rep.Cit.      64,  128;   104,  476;    104,  4S0  ;    117,  160;   124,  291; 
130,  257;   136,  442. 

Overdrawing  of  his  account  by  officer,  a  misdemeanor: 
Pen.  Code,  sec.  561. 

§579.     Definition    of   phrase   "create   debts."     Receiving 

deposits,  issuing  ceniiicates  of  deposit,  checlvs  and  bills 
of  exchange,  and  the  like,  in  the  transaction  of  the 
business  of  savings  and  loan  corporations,  must  not  be 
construed  to  be  the  creation  of  debts  within  the  meaning 
of  the  phrase  "create  debts,"  in  section  309.  En.  March 
21,   1872. 

Cal.Rep.Cit.   57,  602;   64,  123;   117,  160. 

See  act  of  February  21,  1872,  relative  to  corporations 
for  the  accumulation  and  investment  of  funds  and  savings, 
Appendix,  title  Banks  and  Banking. 

§  580.  Banks,  amount  of  capital  stock  required.  No  sav- 
ings bank,  or  bank,  or  banking  corporation,  shall  be 
incorporated  in  this  state  and  conduct  such  banking  busi- 
ness in  a  city  or  town  of  five  thousand  inhabitants  or 
imder  with  a  capital  stock  of  less  than  twenty-five  thousand 
dollars,  or  in  a  city  or  town  of  over  five  thousand  and 
not  exceeding  ten  thousand  inhabitants  with  a  capital 
stock  of  less  than  fifty  thousand  dollars,  or  in  a  city  or 
town  of  over  ten  thousand  and  not  exceeding  twenty-five 
thousand  inhabitants  with  a  capital  stock  of  less  than  one 
hundred  thousand  dollars,  or  in  a  city  or  town  of  over 
twenty-five  thousand  inhabitants  with  a  capital  stock  of 
less  than  tvv'o  hundred  thousand  dollars.  Before  the 
secretary  of  state  issues  to  any  corporation  that  proposes 
to  do  a  banking  business  his  certificate  of  the  filing  of 
the  articles  of  incorporation,  there  must  be  filed  in  his 
office  the  afiidavit  of  the  persons  named  in  said  articles 
as  the  first  directors  of  the  corporation,  that  all  the  capital 
stock  has  been  actually  and  in  good  faith  subscribed,  and 
at  least  fifty  per  centum  thereof  paid,  in  lawful  money  of 
the  United  States,  to  a  person  in  such  affidavit  named, 
for  the  benefit  of  the  corporation.  The  remainder  of  the 
capital  stock  must  be  paid  in  within  two  years  after  said 


187  SAVINGS    AND    LOAN    CORPORATIONS.  §§  5S1-583 

banking  corporation  receives  its  certificate  of  fncorpora- 
tion,  and  if  not  so  paid  said  banking  corporation  shall 
not  be  authorized  to  do  business;  provided,  however,  that 
the  provisions  of  this  section  shall  not  apply  to  corporations 
now  in  existence.     En.  Stats.  1903,  87. 

§  581.  Restrictions  on  savings  bani<s.  No  savings  bank 
shall  lend  to  exceed  sixty  per  cent  of  the  market  value  of 
any  piece  of  real  estate  to  be  taken  as  security,  except 
for  the  purpose  of  facilitating  the  sale  of  property  owned 
by  the  corporation.  And  it  shall  be  unlawful  for  any 
savings  and  loan  society,  or  savings  bank,  to  purchase, 
invest,  or  loan  its  capital,  or  the  money  of  its  depositors, 
or  any  part  of  either,  in  mining  shares  or  stocks.  Any 
president  or  managing  officer  who  knowingly  consents  to 
a  violation  of  the  above  provision  shall  be  deemed  guilty 
of  a  felony.    En.  Stats,  1903,  352. 

§  582.  True  names  of  persons  engaged  in  banking  must  be 
sliown.  Every  person  or  number  of  persons  not  being 
incorporated,  engaged  in  the  business  of  banking,  or 
publicly  receiving  money  on  deposit  must  conduct  such 
business  under  a  name  which  shows  the  true"  names  of 
all  persons  engaged  therein,  unless  such  person  or  persons 
have  complied  with  the  provisions  of  article  VII  of  chapter 
II  of  title  X  of  part  IV  of  division  third  of  said  Civil  Code. 
Every  person  violating  any  of  the  provisions  of  this  section 
is  guilty  of  a  misdemeanor,  and  is  punishable  by  imprison- 
ment in  the  county  jail  for  not  less  than  ninety  days  nor 
more  than  six  months,  or  by  fine  of  not  1-ess  than  one 
hundred  dollars  nor  more  than  five  hundred  dollars,  or  by 
both  such  fine  and  imprisonment.     En.  Stats.  19u3,  352. 

§  583.  Dividends — Surplus  funds.  The  directors  of 
any  savings  bank,  bank,  or  banking  corporation  having 
a  capital  stock,  may  semi-annually  declare  a  dividend 
of  so  much  of  the  net  profits  of  the  stockholders  as 
they  shall  judge  expedient;  but  every  such  corporation 
shall,  before  the  declaration  of  such  dividend,  carry  at 
least  one  tenth  (1-10)  part  of  the  net  profits  of  the 
stockholders  for  the  preceding  half  year  to  its  surplus 
or  reserve  fund  until  the  same  shall  amount  to  twenty- 
five  per  centum  of  its  paid-up  capital  stock.    Bn*-  the  whole 


§§  5S3a-585  MINING    CORPORATIONS.  188 

or  any  part  of  such  surplus  or  reserve  fund,  if  held  as 
the  exclusive  property  of  stockholders,  may  at  any  time 
be  converted  into  paid-up  capital  stock,  in  which  event 
such  surplus  or  reserve  fund  shall  be  restored  in  manner 
as  aliove  provided  until  it  amounts  to  twenty-five  per 
centum  of  the  aggregate  paid-up  capital  stock.  A  larger 
surplus  or  reserve  fund  may  be  created,  and  nothing  herein 
contained  shall  be  construed  as  prohibitoi-y  thereof.  Eu. 
Stats.  1903,  353. 

Cal.Rep.Cit.   134,   605. 

§  583a.  Capital  actually  paid  up  must  be  published. 
No  banker,  nor  officer  of  any  bank  or  corporation  do- 
ing a  banking  business,  shall  advertise  in  any  manner, 
or  publish  any  statement  of  the  capital  stock  authorized 
or  subscribed,  unless  he  advertise  and  publish  in  connec- 
tion therewith,  the  amount  of  capital  actually  paid  up. 
Any  officer,  or  the  officers  of  any  bank  or  corporation 
doing  a  banking  business,  advertising  in  any  manner,  or 
publishing,  a  statement  of  the  capital  stock  of  such  bank 
or  banking  corporation,  authorized  or  subscribed,  without 
the  statement  in  connection  therewith  of  the  stocK  actually 
paid  up,  shall  be  guilty  of  a  misdemeanor.  En.  Stats.  1903, 
353. 

TITLE    XL 

MINING    CORPORATIONS. 

§  584.     Removal  of  the  principal  office  provided  for.     (Repealed.) 
I  585.     Directofs  to  file  certificates  of  proceedings  in  offices  of  county 

clerks  and  secretary  of  state. 
§  586.      Transfer  agencies. 
§  587.     Stock  issued  at  transfer  agencies. 

§  584.     Removal    of    the    principal    office    provided    for. 
(Repealed.)     En.  IMarch  21,  1872.     Rep.  1875-6,  73. 
Cal.Rep.Cit.  119,  343. 

§  585.  Directors  to  file  certificates  of  proceedings  In 
offices  of  county  clerks  and  secretary  of  state.  When  the 
publication  provided  for  in  the  preceding  section  has  been 
completed,  the  directors  of  the  corporation  must  file  in 
the  offices  of  the  clerks  of  the  counties  from  and  to  which 
such  change  has  been  made,  and  in  the  office  of  the 
secretary  of  state,  certified  copies  of  the  written  consent 


189  MINING    CORPORATIONS.  §§  5S6,  587 

of  the  stockholders  to  such  change,  and  of  the  notice  of 
such  change,  and  proof  of  publication;  also,  a  certificate 
that  the  proposed  removal  has  taken  place;  and  thereafter 
the  principal  place  of  business  of  the  corporation  is  at  the 
place  to  which  it  is  removed.    En.  March  21,  1872. 

Act  for  protection  of  miners:  See  post,  Appendix,  title 
Mines  and  Mining. 

Act  relating  to  removal  of  oflacers:  See  post,  Appendix, 
title  Mines  and  Mining. 

§  586.  Transfer  agencies.  Any  corporation  organized 
in  this  state  for  the  purpose  of  mining  or  carrying  on 
mining  operations  in  or  without  this  state,  may  establish 
and  maintain  agencies  in  other  states  of  the  United  States, 
for  the  transfer  and  issuing  of  their  stock;  and  a  transfer 
or  issue  of  the  same  at  any  such  transfer  agency,  in 
accordance  with  the  provisions  of  its  by-laws,  is  valid  and 
binding  as  fully  and  effectually  for  all  purposes  as  if  made 
upon  the  books  of  such  corporation  at  its  principal  office 
within  this  state.  The  agencies  must  be  governed  by  the 
by-laws  and  the  directors  of  the  corporation.  En.  March 
21,  1872. 

§  587.  Stock  issued  at  transfer  agencies.  All  stock  of 
any  such  corporation,  issued  at  a  transfer  agency,  must  be 
signed  by  the  president  and  secretary  of  the  corporation, 
and  countersigned  at  the  time  of  its  issue  by  the  agent 
having  charge  of  the  transfer  agency.  No  stock  must  be 
issued  at  a  transfer  agency  unless  the  certificate  of  stock, 
in  lieu  of  which  the  same  is  issued,  is  at  the  time  sur- 
rendered for  cancellation.     En.  March  21,  1872. 


§§593-595  KKLIGIOLS.    ETC.,    CORPORATIONS.  190 


TITLE    XII. 

RELIGIOUS,    SOCIAL,    AND    BENEVOLENT    CORPORATIONS. 

§  593.  Corporations  for  purposes  other  than  profit,  how  termed. 

§   594.  Additional  facts,   articles  of   incorporation  to  set  out. 

§   595.  Amount  of  real  estate  limited. 

§   596.  How  much   laud  friendly,  etc.,   societies  may  hold. 

§   597.  Directors  to  make  verified  report  annually. 

§   598.  Sale  and  mortgage  of  real  estate. 

§   599.  What  may   be  provided  for  in  their  by-laws. 

§   600.  Members   admitted   after   incorporation. 

§   601.  No  member  to  transfer  membership,  etc. 

§   602.  Religious  societies  may  become  sole  corporations. 

§   603.  Churches,    how   incorporated. 

§   604.  Same. 

§   605.  Consolidation  of  debts. 

§  593.  Corporations  for  purposes  other  than  profit,  how 
formed.  Any  number  of  persons  associated  together  for 
any  purpose,  where  pecuniary  profit  is  not  their  object,  and 
for  which  individuals  may  lawfully  associate  themselves, 
may,  in  accordance  with  the  rules,  regulations,  or  discipline 
of  such  association,  elect  directors,  the  number  thereof  to 
be  not  less  than  three  nor  more  than  eleven,  a.nd  may 
incorporate  themselves  as  provided  in  this  part.  En.  March 
21.  1872.  Am'd.  1880,  6. 

Cal.Rep.Cit.   114,  300;   114,  301;   121,  321:   128,  260;    128,  262. 

Act  relating  to  mutual  benefit  and  relief  associations: 
See  post.  Appendix,  title  Benefit  Societies. 

Benevolent  associations  not  insurance  companies:  Ante, 
sec.  451. 

§  594.  .  Additional  facts,  articles  of  incorpcration  to 
set  out.  In  addition  to  the  requirements  of  section  290, 
the  articles  of  incorporation  of  any  association  mentioned 
in  the  preceding  section  must  set  forth  the  holding  of  the 
election  for  directors,  the  time  and  place  where  the  same 
was  held,  that  a  majority  of  the  members  of  such  associa- 
tion were  present  and  voted  al  such  election,  and  the 
result  thereof;  which  facts  must  be  verified  by  the  officers 
condi'tcting  the  election.     En.  March  21,  1872. 

Cal.Rep.Cit.   52,  333;   128,  260;   128,  261;   128,  262. 

§  595.  Amount  of  real  estate  limited.  All  such  corpora- 
tions may  hold  all  the  property  of  the  association  owned 
prior    to    incorporation,    or    acquired    thereafter    in    any 


191  RELIGIOUS,    ETC.,    CORPORATIONS.  §  596 

manner,  and  transact  all  business  relative  thereto;  but 
DO  such  corporation  must  own  or  hold  more  real  estate 
than  may  be  necessary  for  the  business  and  objects  of  the 
association,  and  providing  burial  groimds  for  its  deceased 
members,  not  to  exceed  six  whole  lots  in  any  city  or  town, 
nor  more  than  fifty  acres  in  the  country,  the  annual  in- 
crease, income,  or  profit  whereof  must  not  exceed  fifty 
thousand  dollars;  provided,  that  any  such  corporation  now 
or  hereafter  having,  and  having  had  continuously,  for  the 
next  preceding  three  years,  the  care,  custody,  control,  and 
maintenance  each  yeai',  upon  an  annual  average  of  not  less 
than  one  hundred  orphans,  half  orphans,  and  indigent  minor 
children,  at  any  one  orphan  asylum,  shall  be  entitled  and 
allowed  to  own  and  possess  any  number  of  acres  not  ex- 
ceeding one  hundred  and  sixty  acres  of  land  in  the  country, 
outside  of  any  incorporated  city  or  town,  and  the  annual 
Income  or  profit  of  which  does  not  exceed  fifty  thousand 
dollars;  and  provided  further,  that  the  limitations  herein 
provided  for  shall  not  apply  to  corporations  formed,  or  to 
be  formed,  under  section  six  hundred  and  two  of  the  Civil 
Code,  when  the  land  is  held  or  used  for  churches,  hospitals, 
schools,  colleges,  orphan  asylums,  parsonages,  or  cemetery 
purposes,  or  to  corporations  organized  other  than  for  profit^ 
when  the  laud  is  timber  land,  and  not  exceeding  one 
hundred  and  sixty  acres  in  extent,  and  is  held  or  used  for 
the  purposes  of  the  organizations,  in  which  case  said  land 
shall  be  subject  to  all  laws  regulating  the  preservation  of 
forests.  En.  March  21,  1872,  Am'd.  1881,  9;  1899,  10;  1903, 
136. 

Cal.Rep.Cit.   114,  300;   114,  301;   119,  4S3. 

•  §  596.  How  much  land  friendly,  etc.,  societies  may  hold. 
In  addition  to  that  provided  for  in  the  preceding  section, 
friendly  societies  and  pioneer  associations  may  hold  such 
real  estate  as  may  be  necessary  to  carry  out  their  charitable 
purposes,  or  for  the  establishment  and  endowment  of 
institutions  of  learning  connected  therewith.  In  case  any 
such  corporation  is  the  owner,  by  donation  or  purchase, 
of  more  lands  than  herein  or  in  preceding  section  provided 
for,  such  surplus  must  be  sold  and  conveyed  by  the  cor- 
poration within  five  years  after  its  acquisition.  Such  sale 
may  be  made  without  the  order  or  decree  of  the  superior 


§§  597-599  RELIGIOUS,    ETC..    CORPORATION'S.  192 

court,  as  hereinafter  provided.  En.  March  21,  1872.  Am'd. 
1877-8,  84;  ISSO,  6. 

§  597.     Directors  to  make  verified  report  annually.     The 

directors  must  annually  make  a  full  report  of  all  property, 
real  and  personal,  held  in  trust  for  their  corporation  by 
them,  and  of  the  condition  thereof,  to  the  members  oJ 
the  association  for  which  they  are  acting.  En.  March  21, 
1872. 

§  598.  Sale  and  mortgage  of  real  estate.  Corporations 
of  the  character  mentioned  in  section  593  may  mortgage 
or  sell  the  real  property  held  by  them,  and  may  secure 
the  payment  of  indebtedness  by  deed  of  trust  or  mortgage 
upon  their  real  property,  upon  obtaining  an  order  for  that 
purpose  from  the  superior  court  held  in  the  county  in  which 
the  property  is  situated.  The  corporations  above  mentioned 
may  also  issue  bonds,  payable  at  any  time  within  twenty 
years,  as  evidence  of  the  indebtedness  secured  by  mortgage 
or  deed  of  trust.  Before  making  the  order,  proof  must  be 
made  to  the  satisfaction  of  the  court,  that  notice  of  che  ap- 
plication for  leave  to  sell  or  mortgage  or  execute  a  deed  of 
trust  has  been  given  by  publication  in  such  manner  and  for 
such  time  as  the  court  or  the  judge  has  directed,  and  that  it 
is  to  the  interest  of  the  corporation  that  leave  should  be 
granted  as  prayed  for.  The  application  must  be  made  by 
petition,  and  any  member  of  the  corporation  may  oppose 
the  granting  of  the  order  by  affidavit  or  otherwise.  But 
nothing  herein  contained  shall  prohibit  or  prevent  the 
trustees  or  directors  of  such  corporation,  under  such  rules 
and  regulations  as  they  may  adopt,  from  disposing  of  burial 
plots  situated  in  grounds  of  such  corporation  dedicated 
for  burial  purposes,  without  making  such  application  to 
or  obtaining  an  order  from  court.  En.  March  21,  1872. 
Am'd.  1873-4,  216;  1880,  6;  1889,  230;  1891,  179. 

§  599.  What  may  be  provided  for  in  their  by-laws.  Cor- 
porations now  organized  or  that  may  hereafter  be  organized 
for  purposes  other  than  profit,  may,  either  in  their  by-laws, 
ordinances,  constitutions,  or  articles  of  incorporation,  pro- 
vide for: 

1.  The  qualification  of  members,  mode  of  election  or 
appointment,  and  terms  of  admission  to  membership; 


193  RELIGIOUS,    ETC..    CORPORATIONS.  §§  600,  601 

2.  The  fees  of  admission  and  dues  to  be  paid  to  their 
treasury  by  members; 
4  3.  The  number  of  persons  that  shall  constitute  a  quorum 
at  any  meeting  of  the  corporation,  and  that  an  election  of 
officers  of  the  corporation  by  a  meeting  so  constituted  or 
the  appointment  or  selection  of  such  officers,  or  any  of 
them,  in  any  manner  required  by  the  rules,  regulations, 
or  discipline  of  any  specified  religious  denomination, 
society,  or  church  shall  be  as  valid  as  if  made  at  an  election 
at  which  a  majority  of  the  members  of  the  corporation 
were  present  and  voted; 

4.  The  expulsion  and  suspension  of  members  for  mis- 
conduct or  nonpayment  of  dues,  also  for  restoration  to 
membership; 

5.  A  special  method  of  organizing  the  board  of  directors, 
and  a  special  method  of  increasing  or  diminishing  the 
number  of  directors  within  the  limits  as  to  number  pre- 
scribed by  section  five  hundred  and  ninety-three  of  this 
code; 

6.  Contracting,  securing,  paying,  and  limiting  the  amount 
of  their  indebtedness; 

7.  That  'the  rules,  regulations,  or  discipline  for  the  time 
being,  of  any  specified  religious  denomination,  society,  or 
church,  shall  always  be  a  part  of  their  by-laws,  ordinances, 
constitutions,  or  articles  of  incorporation; 

8.  Other  regulations  not  repugnant  to  the  constitution 
or  laws  of  the  state  and  consonant  with  the  objects  of  the 
corporation.  En.  March  21,  1872.  Am'd.  1885,  136;  1897, 
246. 

Cal.Rep.Cit.   Subd.  4—90,   243. 

§  600.  Members  admitted  after  incorporation.  Members 
admitted  after  incorporation  have  all  the  rights  and  privi- 
leges, and  are  subject  to  the  same  responsibilities,  as 
members  of  the  association  prior  thereto.  En.  March  21, 
1872. 

§  601.  No  member  to  transfer  membersiiip,  etc.  No 
member,  or  his  legal  representative,  must  dispose  of  or 
transfer  any  right  or  privilege  conferred  on  him  by  reason 
of  his  membership  of  such  corporation,  or  be  deprived 
thereof,  except  as  herein  provided.  En.  March  21,  1872. 
Civ.  Code— 9 


§  C02  RELIGIOUS.    ETC.,    CORPORATIONS.  194 

§  602.  Religious  societies  may  become  sole  corporations. 
Whenever  the  rules,  regulations,  or  di-scipline  of  any 
religious  denomination,  society,  or  church  so  require,  for^ 
the  administration  of  the  temporalities  thereof,  and  the 
management  of  the  estate  and  property  thereof,  it  shall 
be  lawful  for  the  bishop,  chief  priest,  or  presiding  elder 
of  such  religious  denomination,  society  or  church,  to  be- 
come a  sole  corporation,  in  the  manner  prescribed  in  this 
title,  as  nearly  as  may  be,  and  with  all  the  powers  and 
duties,  and  for  the  uses  and  purposes  in  this  title  provided 
for  religious  incorporations,  and  subject  to  all  the  con- 
ditions, limitations  and  provisions  in  said  title  prescribed. 
Every  corporation  sole  shall,  however,  for  the  purposes 
of  the  trust,  have  power  to  contract  in  the  same  manner 
and  to  the  same  extent  as  a  natural  person,  and  may  sue 
and  be  sued,  and  may  defend,  in  all  courts  and  places,  in 
all  matters  and  proceedings  whatever,  and  shall  have 
authority  to  borrow  money,  and  give  promissory  notes 
therefor,  and  to  secure  the  payment  thereof  by  mortgage 
or  other  lien  upon  property,  real  or  personal;  to  buy, 
sell,  lease,  mortgage,  and  in  every  way  deal  in  real  and 
personal  property  in  the  same  manner  that  a  natural 
person  may,  and  without  the  order  of  any  court;  to  receive 
bequests  and  devises  for  its  own  use  or  upon  trusts  to  the 
same  extent  as  natural  persons  may;  and  to  appoint 
attorneys  in  fact.  The  articles  of  incorporation  to  be 
filed  shall  set  forth  the  facts  authorizing  such  incorpora- 
tion, and  declare  the  manner  in  which  any  vacancy  occur- 
ring in  the  incumbency  of  such  bishop,  chief  priest,  or 
presiding  elder  is  required  by  the  rules,  regulations,  or 
discipline  of  such  denomination,  society,  or  church  to  be 
filled,  which  statement  shall  be  verified  by  affidavit,  and  for 
proof  of  the  appointment  or  election  of  such  bishop,  chief 
priest,  or  presiding  elder,  or  of  any  succeeding  incumbent 
of  such  corporation,  it  shall  be  sufficient  to  record  with 
the  clerk  of  the  county  in  which  such  bishop,  chief  priest, 
or  presiding  elder  resides,  the  original  or  a  copy  of  his 
commission,  or  certificate  or  letters  of  election  or  appoint- 
ment, duly  attested;  provided,  all  property  held  by  such 
bishop,  chief  priest,  or  presiding  elder  shall  be  in  trust 
for  the  use,  purpose,  and  behoof  of  his  religious  denomi- 
nation, society,  or  church.     The  limitation  in  section  five 


195  RELIGIOUS,    ETC.,    CORPORATIONS.  §603 

hundred  and  ninety-five  shall  not  apply  to  corporations 
formed  under  this  section,  when  the  land  is  held  or  used 
for  churches,  hospitals,  schools,  colleges,  orphan  asylums, 
parsonages,  or  cemetery  purposes.  Any  judge  of  the 
superior  court  in  the  county  in  which  any  corporation  is 
formed  under  this  chapter  shall  at  all  times  have  access 
to  the  books  of  such  incorporation.  Any  corporation  sole 
heretofore  organized  and  existing  under  the  laws  of  this 
state  may  elect  to  continue  its  existence  under  this  title 
by  filing  a  certificate  to  that  effect,  under  its  corporate 
seal  and  the  hand  of  its  incumbent,  or  amended  articles 
of  incorporation,  in  the  form  required  by  this  title,  and  as 
prescribed  by  section  two  hundred  and  eighty-seven  of 
this  code;  and  from  and  after  the  filing  of  such  certificate 
or  amended  articles,  such  corporation  shall  be  entitled  to 
the  privileges  and  subject  to  the  duties,  liabilities,  and 
provisions  in  this  title  expressed.  En.  Stats.  1S77-8,  84. 
Am'd.  1880,  6;  1897,  101. 
Cal.Rep.Cit.   94,   161. 

See  acts  of  March  28,  1874,  relative  to  mutual  beneficial 
and  relief  associations.  Appendix,  title  Benefit  Societies; 
and  January  8,  1872,  relative  to  incorporation  of  colleges  by 
benevolent  and  religious  societies.  Stats.  1871-2,  p.  10. 

§  603,  Churches,  how  incorporated.  Whenever  the  regu- 
lations, rules,  or  discipline  of  any  church  or  religious 
society  require,  for  the  administration  of  the  temporalities 
thereof,  or  for  the  management  of  the  property  or  estate 
thereof,  any  diocese,  synod,  or  district  organization  of 
such  church  or  religious  society  may  elect  directors  and 
become  an  incorporation  in  the  manner  prescribed  in  this 
title,  and  with  all  the  powers  and  duties,  and  for  the  uses 
and  purposes  in  this  title  provided  for  benevolent  or  re- 
ligious incorporations,  and  subject  to  all  the  conditions, 
limitations,  and  provisions  in  said  title  prescribed,  except 
as  otherwise  provided  in  this  section;  provided,  that 
directors  of  such  incorporation  may  be  elected,  and  that 
the  by-laws  for  its  government  may  be  made  and  amended 
by  the  convention,  synod,  or  other  representative  body  of 
such  church  or  religious  society,  in  and  for  such  district, 
in  accordance  with  the  constitution,  by-laws,  discipline,  or 
regulation  thereof,  at  any  regular  meeting,  or  special  meet- 


§604  RELIGIOUS,    ETC.,    CORPORATIONS.  196 

Ing  called  for  that  purpose;  and,  provided,  the  certificate 
of  Incorporation  and  of  the  election  of  directors  to  be  filed 
shall  be  sufficiently  signed  and  attested  by  the  signature  of 
the  presiding  officer  and  secretary  of  the  representative 
convention,  synod,  or  other  such  body,  in  which  such 
election  is  held;  and,  provided,  all  property  held  by  such 
incorporation  shall  be  in  trust  for  the  use,  benefit,  and 
purpose  of  the  church  or  religious  society  by  and  for  which 
such  incorporation  was  formed,  and  in  and  of  which  such 
diocese,  synod,  or  other  district  is  an  organized  or  con- 
stituent part;  and  that  the  limitation  in  section  five  hun- 
dred and  ninety-five  shall  not  apply  to  corporations  formed 
under  this  section,  when  the  land  is  held  or  used  for 
churches,  hospitals,  schools,  colleges,  asylums,  parsonages, 
or  cemetery  purposes.  En.  Stats.  1S85,  109. 
Cal.Rep.Cit.   114,  300;   114,  301;   12S,  262. 

§  604.  Same.  Any  church  or  other  religious  association 
in  this  state,  composed  of  two  or  more  constituent  parishes, 
missions,  congregations,  or  societies,  having  a  common 
convention,  synod,  council,  or  other  representative  legis- 
lative body,  may  be  incorpoi-ated  by  such  representative 
body  under  this  part  and  subject  to  the  provisions  of  this 
title,  except  as  otherwise  provided  in  this  section.  The 
representative  body  of  such  religious  association  electing 
to  incorporate  the  same  shall  determine  the  name  of 
the  proposed  corporation,  the  purpose  for  whica  it  is 
formed,  the  place  where  its  principal  business  is  to  be 
transacted,  the  term  for  which  it  is  to  exist,  and  the 
number  of  its  directors,  and  shall  elect  its  directors  for 
the  first  year.  The  articles  of  incorporation  need  only 
be  signed  and  acknowledged  by  the  presiding  officer  and 
secretary  of  such  representative  body,  and  in  addition  to 
the  requirements  of  section  two  hundred  and  ninety,  shall 
set  forth  the  proceedings  herein  prescribed  for  said  repre- 
sentative body,  and  that  the  same  were  duly  had  in  accord- 
ance with  the  constitution,  canon,  rules  or  regulations 
governing  the  other  proceedings  of  said  representative 
body,  and  the  time  and  place  thereof.  The  directors  of 
such  corporation  shall  be  elected  annually  by  the  repre- 
sentative body  of  the  association.  The  representative  body 
providing  for  such  incorporation  shall  frame  by-laws  for 
the   corporation,    and    such    by-laws   may    be   repealed    or 


197  RELIGIOUS,    ETC.,    CORPORATIONS.  §  605 

amended,  or  new  by-laws  may  be  adopted  by  any  subse- 
quent representative  body  in  accordance  with  the  constitu- 
tion, canons,  rules,  or  regulations  governing  the  other 
proceedings  of  such  representative  body.  Such  corpora- 
tion may  hold  and  administer  not  only  the  common 
property,  funds,  and  money  of  such  association,  but  also 
the  property,  funds,  and  money  of  any  constituent  parish, 
mission,  congregation,  or  society.  The  limitation  in  section 
five  hundred  and  ninety-five  shall  not  apply  to  corporations 
formed  under  this  section  when  the  land  is  held  or  used 
for  churches,  hospitals,  schools,  colleges,  asylums,  par- 
sonages, or  cemetery  purposes. 

§  2.  An  act  entitled  "An  act  to  amend  an  act  entitled 
'An  act  to  establish  a  Civil  Code,'  approved  March  21st, 
]872,  by  adding  a  new  section  thereto,  to  be  known  as 
section  604,  relating  to  the  formation  of  religious  incor- 
porations for  holding  and  administering  church  property," 
approved  March  12th,  1885,  being  inconsistent  herewith  is 
hereby  repealed.     En.  Stats.  1SS7,  104. 

§  605.  Consolidation  of  debts.  Any  corporation,  now 
or  hereafter  organized  for  purposes  other  than  profit, 
may  consolidate  its  debts,  property,  assets  and  fran- 
chises, with  any  other  like  association  or  corporation, 
either  created  under  the  laws  of  the  state  of  California 
or  under  the  laws  of  any  other  state  or  territory,  in 
such  manner  as  may  be  agreed  upon  by  the  respective 
boards  of  directors,  or  trustees,  of  such  corporations; 
provided,  however,  that  no  such  consolidation  shall  take 
place  without  the  written  consent  of  three  fifths  (3-5) 
of  the  boards  of  directors,  or  trustees,  of  each  of  the 
corporations  so  consolidating,  and  such  consolidation  must 
not  in  any  way  relieve  either  of  the  corporations  parties 
to  it  from  any  or  all  just  debts  or  liabilities;  provided, 
further,  that  in  case  of  any  such  consolidation,  due  notice 
of  the  same  must  be  given  by  advertisement  published  for 
one  month  in  at  least  one  newspaper  published  at  the  place 
of  the  principal  business  of  each  of  the  corporations  so 
consolidating.  When  their  consolidation  is  completed, 
a  copy  of  the  new  articles  of  incorporation  must  be  filed 
with  the  secretary  of  state,  in  the  same  manner  as  the 
original  articles  of  incorporation  are  required  to  be  filed. 
En.  Stats.  1903,  251. 


5§  COS,  609  CEMETERY    CORPORATIONS.  198 


TITLE    XIII. 

CEMETERY    CORPORATIONS. 

§  608.     How  much  land  may  be  held,  and  how  disposed  of. 

§  609.     Who  are  members  eligible  to  vote  and  hold  office. 

§  610,  May  hold  personal  property,  to  what  amount.  How  dis- 
posed of. 

§  611.  May  issue  bonds  to  pay  for  grounds.  Proceeds  of  sales, 
how  disposed  of. 

§  612.     May  take  and  hold  property  or  use  income  thereof,  how. 

§  613.     When  burial  lot  inalienable.     Who  may  not  be  buried  in  lot. 

§  614.  Lot  owners  previous  to  purchase  to  be  members  of  the 
corporation. 

§  615.     May  sell   lands,  how. 

§  616.     May  hold  property.     Income,  how  applied. 

§  608.     How  much  land  may  be  held,  and  how  disposed  of. 

Corporations  organized  to  establisli  and  maintain  ceme- 
teries may  take,  by  purchase,  donation,  or  devise,  land,  not 
exceeding  three  hundred  and  twenty  acres  in  extent,  in  the 
county  wherein  their  articles  of  incorporation  are  filed, 
or  in  an  adjoining  county,  and  may  employ  any  surplus 
moneys  in  the  treasury  thereof  for  such  purpose;  such 
lands  to  be  held  and  occupied  exclusively  as  a  cemetery 
for  the  burial  of  the  dead.  The  lands  must  be  surveyed 
and  subdivided  into  lots  or  plats,  avenues,  and  walks,  under 
order  of  the  directors,  and  a  map  thereof  filed  in  the  office 
of  the  recorder  of  the  county  wherein  the  lands  are 
situated.  Thereafter,  upon  such  terms  and  subject  to  such 
conditions  and  restrictions,  to  be  inserted  in  the  convey- 
ances, as  the  "by-laws  or  directors  may  prescribe,  the 
directors  may  sell  and  convey  the  lots  or  plats  to  pur- 
chasers.   En.  March  21,  1872.  Am'd.  1891,  179. 

Manner  of  execution  of  deeds  by:    See    post.  Appendix, 
title  Corporations. 

8  609.     Who  are  members  eligible  to  vote  and  hold  office. 

Every  person  of  full  age  who  is  proprietor  of  a  lot  or  plat 
in  the  cemetery  of  the  corporation,  containing  not  less 
than  two  hundred  stiuare  feet  of  land,  or,  if  there  be  more 
than  one  proprietor  of  any  such  lot,  then  such  of  the  pro- 
prietors as  the  majority  of  joint  proprietors  designate,  may, 
in  person  or  by  proxy,  cast  one  vote  at  all  elections  had  by 
the  corporation  for  directors  or  any  other  purpose,  and  is 
eligible  to  any  office  of  the  corporation.     At  each  annual 


199  CEMETERY    CORPORATIONS.  §§610-612 

meeting  or  election,  the  directors  must  make  a  report  to 
the  proprietors  of  all  their  doings,  and  of  the  management 
ami  condition  of  the  property  and  concerns  of  the  corpora- 
tion.   En.  March  21,  1872. 

§  610.  May  hold  personal  property,  to  what  amount. 
How  disposed  of.  Such  corporations  may  hold  personal 
property  to  an  amount  not  exceeding  five  thousand  dollars, 
in  addition  to  the  surplus  remaining  /rom  the  sales  of 
lots  or  plats  after  the  payments  required  in  the  succeed- 
ing section.  Such  surplus  must  be  disposed  of  in  the 
improvement,  embellishment,  and  preservation  of  the  ceme- 
tery, and  paying  incidental  expenses  of  the  corporation, 
and  in  no  other  manner.    En.  March  21,  1872. 

§611.  May  issue  bonds  to  pay  for  grounds.  Proceeds 
of  sales,  how  disposed  of.  Such  corporations  may  issue 
their  bonds,  bearing  interest  not  exceeding  twelve  per 
cent  per  annum,  for  the  purchase  of  lands  for  their  ceme- 
teries, payable  out  of  the  proceeds  of  the  cemetery,  and 
not  otherwise;  sixty  per  cent  of  the  proceeds  of  sales  of 
lots,  plats,  and  graves  must  be  applied  at  least  every  three 
months  to  the  payment  of  the  bonds  and  interest.  Such 
corporations  may  also  agree  with  the  person  or  persons 
from  whom  cemetery  lands  shall  be  purchased,  to  pay  for 
such  lands,  as  the  purchase  price  thereof,  any  specified 
share  or  portion,  not  exceeding  one  half,  of  the  proceeds 
of  all  sales  of  lots  or  plats  made  from  such  lands;  such 
payment  to  be  made  at  such  intervals  as  may  be  agreed 
upon.  In  all  cases  where  cemetery  lands  shall  be  pur- 
chased and  agreed  to  be  paid  for  in  the  manner  last 
provided,  the  prices  for  lots  or  plats  specified  in  the 
by-laws,  rules,  or  regulations  first  adopted  by  such  associa- 
tion, or  prescribed  in  the  agreement  between  the  cemetery 
and  the  person  or  persons  from  whom  the  cemetery  lands 
were  purchased,  shall  not  be  changed  without  the  written 
consent  of  a  majority  in  interest  of  the  persons  from 
whom  such  lands  were  purchased,  their  heirs,  representa- 
tives, or  assigns.     En.  March  21,  1872.     Am'd.  1880,  12.    , 

§  612.  May  take  and  hold  property  or  use  income  thereof, 
how.  Any  corporation  organized  to  establish  and  main- 
tain, or  to  improve,  a  cemetery,,  may  take  and  hold  title 


§§  613-615  CEMETERY    CORPORATIONS.  200 

to  any  cemetery  lot,  plot  or  grave,  devised  or  given  to  it 
in  trust  for  the  specific  purpose  of  perpetually  caring  for 
the  same.     En.  March  21,  1872.     Am'd.  1900-1,  814. 

§613.  When  burial  lot  inalienable.  Who  may  not  be 
buried  in  lo't.  Whenever  an  interment  is  made  in  any  lot 
or  plat  transferred  to  individual  owners  by  the  corporation, 
the  same  thereby  becomes  forever  inalienable,  and  de- 
scends in  regular  .line  of  succession  to  the  heirs  at  law 
of  the  owner.  When  there  are  several  owners  of  interests 
in  such  lot  or  plat,  one  or  more  may  acquice  by  purchase 
the  interest  of  others  interested  in  the  fee  simple  title 
thereof,  but  no  one  not  an  owner  acquires  interest  or  right 
of  burial  therein  by  purchase;  nor  must  any  one  be  ouried 
in  any  such  lot  or  plat  not  at  the  time  owning  an  interest 
therein,  or  who  is  not  a  relative  of  such  owner,  or  of  his 
wife,  except  by  consent  of  all  jointly  interested;  provided, 
however,  that  when  all  the  bodies  buried  in  any  such  lot 
shall  have  been  removed  therefrom,  with  the  consent  of 
the  owners  of  such  lot,  it  shall  be  lawful  for  the  then 
owners  of  such  lot  to  sell  and  transfer  the  same  by 
deed;  and  any  such  sale  and  transfer  heretofore  made  is 
hereby  declared  to  be  valid  and  effectual  to  transfer  the 
title  to  the  purchaser,  any  law  to  the  contrary  thereof  not- 
withstanding.    En.  March  21,  1872.     Am'd.  1885,  1. 

Cal.Rep.Cit.  115,  375. 

§  614.  Lot  owners  previous  to  purchase  to  be  members 
of  the  corporation.  When  grounds  purchased  or  otherwise 
acquired  for  cemetery  purposes  have  been  previously  used 
as  a  burial  ground,  those  who  are  lot  owners  at  the  time 
of  the  purchase  continue  to  own  the  same,  and  are  mem- 
bers of  the  corporation,  with  all  the  privileges  a  purchase 
of  a  lot  from  the  corporation  confers.     En.  March  21,  1872. 

§615.  May  sell  lands,  how.  Cemetery  corporations  may 
sell  lands  held  by  them  upon  obtaining  an  order  for  that 
purpose  from  the  superior  court  of  the  county  where  the 
lands  are  situated.  Before  making  the  order,  proof  must 
be  made  to  the  satisfaction  of  the  court  that  notice  of  the 
application  for  leave  to  sell  has  been  given  by  publication 
in  such  manner  and  for  such  time  as  the  court  has  directed, 
and  that  the  lands  are  not  required  for  and  are  not  in  use 


201  AGRICULTURAL    FAIR    CORPORATIONS.  §§  616,  620 

for  burial  purposes,  and  that  it  is  for  the  interest  of  the 
corporation  tb^it  such  lands  be  sold.  The  application 
must  be  made  by  petition,  and  any  member  of  the  corpora- 
tion may  oppose  the  granting  of  the  order  by  affidavit  or 
otherwise.     En.  Stats.  1S89,  61. 

§  616.  May  hold  property.  Income,  how  applied.  Any 
corporation  organized  to  establish  and  maintain,  or  to  im- 
prove, a  cemetery,  may  take  and  hold  any  property  be- 
queathed, granted,  or  given  to  it  in  trust,  to  apply  the 
proceeds  or  income  thereof  to  any  and  all  of  the  following 
purposes:  To  the  improvement  or  embellishment  of  such 
cemetery  or  of  any  lot  therein;  or  to  the  erection,  renewal, 
repair,  or  preservation  of  any  monument,  fence,  or  other 
structure  in  such  cemetery;  or  to  the  planting  or  cultiva- 
tion of  trees,  shrubs,  or  plants  in  or  around  such  cemetery, 
or  any  lot  therein;  or  to  the  improving,  ornamenting,  or 
embellishing  of  such  cemetery,  or  any  lot  therein,  in  any 
other  mode  or  manner  not  inconsistent  with  the  purposes 
for  which  such  cemetery  was  established  or  is  being  main- 
tained. Such  property  and  the  proceeds  or  income  thereof 
shall  be  invested  and  reinvested  in  bonds  of  the  United 
States,  or  of  this  state,  oi  of  any  municipality  of  this 
state  or  in  first  mortgages  on  real  estate,  or  in  centrally 
located  income-producing  improved  real  estate  in  any  city, 
or  city  and  county  in  this  state,  if  such  investment  is  not 
repugnant  to  the  terms  of  the  bequest,  grant  or  gift.  En. 
Stats.  1895,  162.     Am'd.  1900-01,  814. 

Cal.Rep.Cit.  138,  557.  • 


TITLE    XIV. 

AGRICULTURAL    FAIR    CORPORATIONS. 

§   620.     May  acquire  and  hold  real  estate,  how  much. 

§  621.     Shall   not  contract  debts  or   liabilities   exceeding   amount   in 

treasury. 
§  622.     Not  for  profit.     May  fix  fee,  etc.,  for  membership. 

§  620.     May    acquire    and    hold    real    estate,    how    much. 

Agricultural  fair  corporations  may  purchase,  hold,  or  lease 
any  quantity  of  land,  not  exceeding  in  the  aggregate  one 
hundred  and  sixty  acres,  with  such  buildings  and  im- 
provements as  may  be  erected  thereon,  and  may  sell,  lease. 


6§  621-628  GAS    CORPORATIONS.  202 

or  otherwise  dispose  of  the  same,  at  pleasure.  This  real 
estate  must  be  held  for  the  purpose  of  erecting  buildings 
and  other  improvements  thereon,  to  promote  and  en- 
tourage agriculture,  liorticulture,  mechanics,  manufactures, 
stock  raising,  and  general  domestic  industry.  En.  March 
21,  1872. 

§621.  Shall  not  contract  debts  or  liabilities  exceeding 
amount  in  treasury.  Such  corporation  must  not  contract 
any  debts  or  liabilities  in  excess  of  the  amount  of  money 
in  the  treasury  at  the  time  of  contract,  except  for  the 
purchase  of  real  property,  for  which  they  may  create  a 
debt  not  exceeding  five  thousand  dollars,  secured  by  mort- 
gage on  the  property  of  the  corporation.  The  directors 
who  vote  therefor  are  personally  liable  for  any  debt  con- 
tracted or  incurred  in  violation  of  this  section.  En.  March 
21,  1872. 

§  622.  Not  for  profit.  May  fix  fee,  etc.,  for  member- 
ship. Agricultural  fair  corporations  are  not  conducted  for 
profit,  and  have  no  capital  stock  or  income  other  than 
that  derived  from  charges  to  exhibitors  and  fees  for  mem- 
bership, which  charges,  together  with  the  term  of  mem- 
bership and  mode  of  acquiring  the  same,  must  be  provided 
for  in  their  by-laws.  Such  fees  must  never  be  greater 
than  to  raise  sufficient  revenue  to  discharge  the  debt  for 
the  real  estate  and  the  improvements  thereon,  and  to  de- 
fray the  current  expenses  of  fairs.    En.  March  21,  1872. 

Cal.Rep.Cit.  93,  368. 


TITLE    XV. 

GAS    CORPORATIONS. 

§  628.     Corporations    to    obtain    privilege    from    city    or    town    and 

use  meters  proved  by  the   inspector. 
§  629.     Gas   to    be    supplied   on    written    application.      Damages   for 

refusal. 
§  630.     When  corporations  may  refuse  to  supply  gas. 
§  631.     Agent  of  corporation  may  inspect  meters. 
§  632.     When  persons  neglect  to  pay,  gas  may  be  shut  oft. 

§  628.  Corporations  to  obtain  privilege  from  city  or 
town  and  use  meters  proved  by  the  inspector.  No  corpora- 
tion hereafter  formed  must  supply  any  city  or  town  with 


203  GAS    CORPORATIONS.  §§629-631 

gas,  or  lay  down  mains  or  pipes  for  that  purpose  in  the 
streets  or  alleys  thereof,  without  permission  from  the  city 
or  town  authorities,  granted  in  pursuance  of  the  provisions 
of  the  Political  Code  or  of  statutes  expressly  continued 
by  such  code.  Nor  must  such  corporation  furnish  or  use 
any  gas-meter  which  has  not  been  proved  and  sealed  by 
the  inspector  of  gas-meters.     En.  March  21,  1872. 

The  constitution  of  1879  gives  the  right  to  lay  gaspipes 
in  streets  under  certain  conditions:    Const.,  art.  XI,  sec.  19. 

§  629.  Gas  to.  be  supplied  on  written  application.  Dam- 
ages for  refusal.  Upon  the  application  in  writing  of  the 
owner  or  occupant  of  any  building  or  premises  distant  not 
more  than  one  hundred  feet  from  any  main  of  the  cor- 
poration, and  payment  by  the  applicant  of  all  money  due 
from  him,  the  corporation  must  supply  gas  as  required 
for  such  building  or  premises,  and  cannot  refuse  on  the 
ground  of  any  indebtedness  of  any  former  owner  or  occu- 
pant thereof,  unless  the  applicant  has  undertaken  to  pay 
the  same.  If,  for  the  space  of  ten  days  after  such  applica- 
tion, the  corporation  refuses  or  neglects  to  supply  the  gas 
required,  it  must  pay  to  the  applicant  the  sum  of  fifty 
dollars  as  liquidated  damages,  and  five  dollars  a  day  as 
liquidated  damages  for  every  day  such  refusal  or  neglect 
continues  thereafter.     En.  March  21,  1872. 

Cal.Rep.Cit.   109,   1-14;    132,   211, 

§  630.  When  corporations  may  refuse  to  supply  gas.  No 
corporation  is  required  to  lay  service  pipe  where  serious 
obstacles  exist  to  laying  it,  unless  the  applicant,  if  re- 
quired, deposits  in  advance,  with  the  corporation,  a  sum 
of  money  sufficient  to  pay  the  cost  of  laying  such  service 
pipe,  or  his  proportion  thereof.     En.  March  21,  1872. 

§  631.  Agent  of  corporation  may  inspect  meters.  Any 
agent  of  a  gas  corporation  exhibiting  written  authority, 
signed  by  the  president  or  secretary  thereof  for  such  pur- 
pose, may  enter  any  building  or  premises  lighted  with  gas 
supplied  by  such  corporation,  to  inspect  the  gas-meters 
therein,  to  ascertain  the  quantity  of  gas  supplied  or  con- 
sumed. Every  owner  or  occupant  of  such  buildings  who 
hinders  or  prevents  such  entry  or  inspection  must  pay  to 


§§632,633  LAND     AND     BUILDING     CORPORATIONS.  204 

the  corporation  the  sum  of  fifty  dollars  as  liquidated  dam- 
ages.    Lin.  March  21,  1S72. 

§  632.  When  persons  neglect  to  pay,  gas  may  be  shut 
off.  All  £"s  corporations  may  shut  oft"  the  supply  of  gas 
from  any  person  who  neglects  or  refuses  to  pay  for  the 
gas  supplied,  or  the  rent  for  any  meter,  pipes,  or  fittings 
provided  by  the  corporation  as  required  by  his  contract; 
and  for  the  purpose  of  shutting  off  the  gas  in  such  case  any 
employee  of  the  corporation  may  enter  the  building  or 
premises  of  such  person,  between  the  hours  of  eight  o'clock 
in  the  forenoon  and  six  o'clock  in  the  afternoon  of  any 
day,  and  remove  therefrom  any  property  of  the  corpora- 
tion used  in  supplying  gas.     En.  March  21,  1872. 

Cal.Rep.Cit.  132,  212. 


TITLE    XVI. 

LAND    AND    BUILDING    CORPORATIONS. 

§  633.  Formation  and  organization.     Articles  of  incorporation,  what 

to   set  forth. 

§   634.  Capital  stock. 

§  635.  Retiring  free  shares. 

§  636.  Maturity  of  stock. 

§   637.  Loans   and   installments. 

§  638.  Rate  of  interest.      Security. 

§   639.  Forfeiture — arrears  in   payments. 

§  640.  Purchase  of  real  estate. 

§  641.  Borrowing  money. 

§   642.  Profits  and  losses. 

§   643.  Membership. 

§   644.  Annual  report. 

§   645.  Foreign  corporations,  deposit  by. 

§   646.  Electing  to  continue  business. 

§  647.  Subject  to  provisions  relating  to  bank  commissioners. 

§   648.  Definition  of. 
§   6481/^.  Taxation  of. 

§  633.  Formation  and  organization.  Articles  of  incor- 
poration, what  to  set  forth.  Corporations  may  be  formed 
subject  to  the  provisions  of  this  title,  and  with  all  the 
rights,  duties,  and  powers  herein  specified.  Such  cor- 
porations shall  be  known  as  mutual  building  and  loan 
associations,  and  the  words  "mutual  building  and  loan 
association"  shall  form  part  of  the  name  of  every  such 
corporation.  The  articles  of  incorporation,  in  setdng  forth 
the  purposes  for  which  the  corporation  is  formed,  shall 
state,  that  it  is  formed  to  encourage  industry,  frugality, 


205  LAND     AND     BUILDING     CORPORATIONS.  §  634 

home  building,  and  savings  among  the  stockholders;  the 
accumulation  of  savings;  the  loaning  to  its  stockholders 
of  the  funds  so  accumulated,  with  the  profits  and  earnings; 
and  the  repayment  to  each  stockholder  of  his  savings  and 
profits,  when  they  have  accumulated  to  a  certain  sum,  or 
at  any  time  when  he  shall  desire  the  same,  as  provided 
in  the  by-laws,  or  when  the  corporation  shall  desire  to 
repay  the  same;  and  shall  also  state  that  it  is  formed  for 
all  the  purposes  specified  in  this  title.    En.  Stats.  1891,  252. 

Cal.Rep.Cit.   136,   525. 

The  sections  by  this  act  added  to  the  Civil  Code,  pro- 
viding for  the  examination  by  the  bank  commissioners 
of  this  state  of  all  building  and  loan  associations,  apply 
to  all  such  corporations,  whether  organized  and  doing 
business  before  or  after  the  passage  of  this  act:  Acts 
of  1891,  p.  252,  sec.  1. 

Act  creating  board  of  commissioners  of  building  and 
loan  associations:  See  post.  Appendix,  title  Building  and 
Loan  Associations. 

Annuity  or  endowment  insurance:  See  post.  Appendix, 
title  Insurance. 

§  634.  Capital  stock.  The  capital  stock  of  such  corpora- 
tions shall  be  paid  in  by  the  stockholders  in  regular,  equal, 
periodical  payments,  at  such  times  and  in  such  amounts 
as  shall  be  provided  in  the  by-laws.  Such  periodical  pay- 
ments shall  be  called  dues.  And  at  or  before  a  time  to  be 
stated  in  the  by-laws,  each  stockholder  shall  pay  to  the 
corporation,  upon  each  share  of  stock  held  by  him,  such 
an  amount  of  dues  as  the  by-laws  shall  provide;  and  the 
payment  of  dues  shall  so  continue  on  each  share  of  stock 
issued  till  it  reaches  its  matured  value,  or  is  withdrawn, 
canceled,  or  forfeited.  The  capital  stock  shall  consist  of 
such  accumulated  dues,  together  with  the  earnings  and 
profits  of  the  corporation,  and  shall  in  no  case  exceed  two, 
million  dollars,  except  as  to  corporations  now  existing.  It 
shall  be  divided  into  shares  of  matured  or  par  value  of 
one  hundred  dollars,  or  two  hundred  dollars  each,  as  shall 
be  provided  in  the  articles  of  incorporation  and  fixed  by 
the  by-laws.  Certificates  of  stock  shall  be  issued  to  each 
stockholder  on  the  first  payment  of  dues  by  him.  The 
shares  shall  be  issued  in  yearly,  half-yearly,  or  quarterly 


:  635  LAND    AND    BUILDING    CORPORATIONS.  206 

series,  except  in  corporations  now  existing,  in  such 
amounts  in  each  series,  and  at  such  times,  as  shall  be 
determined  by  the  board  of  directors.  No  share  of  a  prior 
series  shall  be  issued  after  the  issuing  of  shares  in  a  new 
series.  Shares  which  have  not  been  pledged  as  a  security 
for  the  repayments  of  a  loan  shall  be  called  free  shares. 
Shares  that  have  been  so  pledged  shall  be  called  pledged 
shares.  All  stock  matured  and  surrendered  or  canceled  in 
any  series  shall  become  the  property  of  the  corporation, 
and  may  be  issued  in  any  subsequent  series.  Payment  of 
dues  on  shares  of  stock  in  each  series  shall  commence 
from  the  time  that  shares  began  to  be  issued  in  such  series. 
Any  such  corporation  shall  have  power  by  its  by-laws 
to  impose  and  collect  a  fine  from  each  stockholder  not 
exceeding  ten  per  cent  of  the  defaulted  amount,  for  every 
neglect  or  refusal  to  make  his  payments  of  dues,  or  pre- 
mium, or  interest,  when  due,  and  to  impose  and  collect  a 
like  fine  successively  on  every  regular  pay-day  during  such 
default.  Every  such  corporation  hereafter  formed  shall 
also  have  power  to  charge  an  entrance  fee  upon  each  share 
of  stock  issued,  not  exceeding  ten  cents  on  each  share, 
and  may  also  charge  a  transfer  fee  not  exceeding  ten  cents 
on  each  share,  all  of  which  shall  be  paid  into  the  treasury 
and  accounted  for  as  all  other  funds  of  the  association; 
provided,  that  building  and  loan  associations  heretofore 
incorporated  may  continue  to  charge  and  dispose  of  such 
entrance  and  transfer  fees  as  are  prescribed  by  the  by-laws 
of  such  corporation.  Payment  of  dues  or  interest  may  be 
made  in  advance,  but  no  association  shall  allow  interest 
on  such  advance  payments  at  a  greater  rate  than  six  per 
cent  per  annum,  nor  for  a  longer  period  than  one  year. 
En.  Stats.  1891,  253. 

§  635.  Retiring  free  sinares.  The  directors  may,  at  their 
discretion,  under  the  regulations  prescribed  in  their  by- 
laws, retire  the  free  shares  of  any  series  of  stock,  at  any 
ttme  after  four  years  from  the  date  of  their  issue,  by  en- 
forcing the  withdrawal  of  the  same;  but  whenever  there 
shall  remain  in  any  series,  at  the  expiration  of  five  years 
after  the  date  of  its  issue,  an  excess  above  one  hundred 
free  shares  of  the  par  value  of  two  hundred  dollars  each, 
or  two  hundred  free  shares  of  the  par  value  of  one  hundred 


207  LAND    AND    BUILDING    CORPORATIONS.  §§  636,  637 

dollars  each,  then  it  shall  be  the  duty  of  the  directors 
to  retire  annually  twenty-five  per  centum  of  such  excess 
existing  at  said  expiration  of  five  years  after  the  date 
of  its  issue,  so  that  no  more  than  one  hundred  free  shares 
shall  remain  in  such  series  at  the  expiration  of  i;ine  years 
from  the  date  of  its  issue;  provided,  that  no  more  than 
one  half  the  monthly  receipts  be  used  for  that  purpose; 
and  thereafter  the  directors  may,  in  their  discretion,  retire 
such  other  free  shares  as  they  consider  to  the  best  interest 
of  the  association  to  retire;  provided,  that  whenever,  un- 
der the  provisions  of  this  section,  the  withdrawal  of  shares 
is  to  be  enforced,  the  shares  to  be  retired  shall  be  deter- 
mined by  lot,  drawn  from  all  free  shares  in  the  series,  as 
shall  be  regulated  by  the  by-laws,  and  the  holders  thereof 
shall  be  paid  the  amount  actually  paid  in,  and  the  full 
amount  of  earnings  at  the  date  of  last  apportionment  of 
profits.    En.  Stats.  1891,  254. 

§  636.  Maturity  of  stock.  When  the  stock  in  any  series 
shall  have  reached  its  matured  value,  payment  of  dues 
thereon  shall  cease,  and  all  of  the  stockholders  in  such 
series  who  have  borrowed  from  the  association  shall  be 
entitled  to  have  their  securities  returned  to  them,  and  a 
satisfaction  of  the  mortgages  made  by  them  to  the  associa- 
tion; and  the  holders  of  free  shares  of  stock  in  such  series 
shall  be  paid  out  of  the  funds  of  the  association  the  ma- 
tured value  thereof,  with  such  rate  of  interest  as  shall 
be  determined  by  the  by-laws,  from  the  time  the  board  of 
directors  shall  declare  such  share  to  have  matured  until 
paid;  but  at  no  time  shall  more  than  one-third  of  the  re- 
ceipts of  the  association  be  applicable  to  the  payment  of 
matured  shares,  without  the  consent  of  the  board  of  di- 
rectors. The  order  of  the  payment  of  the  matured  shares 
shall  be  determined  by  the  by-laws.    En.  Stats.  1891,  254. 

§637.  Loans  and  installments.  The  moneys  in  the 
hands  of  the  treasurer,  and  such  sums  as  may  be  bor- 
rowed by  the  corporation  for  the  purpose,  shall  be  loaned 
out  in  open  meeting  to  the  member  who  shall  bid  the 
highest  premium,  or  may  be  loaned  at  such  premium  as 
may  be  fixed  from  time  to  time,  by  the  board  of  directors; 
and  the  premium  may  be  deducted  from  the  amount  of  the 


§§  038,  639  LAND    AND    BUILDING    CORPORATIONS.  208 

loan,  or  such  proportion  may  be  deducted  as  the  by-laws 
shall  provide,  and  in  that  case  the  balance  of  said  pre- 
mium shall  be  payable  in  such  installments  as  the  by-laws 
shall  determine;  provided,  however,  that  where  the  pre- 
mium is  payable  in  installments,  the  number  of  install- 
ments into  which  the  same  is  divided  shall  be  uniformly 
applicable  to  all  loans  made  by  the  corporation,  and  shall 
be  payable  at  the  times  and  in  the  manner  as  provided 
in  the  by-laws;  and  provided  further,  that  in  no  case  shall 
the  amount  loaned  exceed  the  matured  value  of  the  shares 
pledged  to  secure  the  loan.  En.  Stats.  1891,  254. 
Cal.Rep.Cit.   136,  526. 

§  638.  Rate  of  interest.  Security.  The  rate  of  interest 
on  all  loans  may  be  fixed  by  the  by-laws;  but  in  case  the 
by-laws  fail  to  fix  the  rate,  then  it  shall  be  fixed  from  time 
to  time  by  the  board  of  directors.  For  every  loan  made 
a  note  or  obligation  secured  by  a  first  mortgage  or  deed 
of  trust  upon  unincumbered  real  estate  shall  be  given, 
accompanied  by  a  transfer  and  pledge  to  the  association 
of  at  least  one  share  of  stock  as  collateral  security  for 
the  repayment  of  the  loan,  or  in  lieu  of  a  mortgage  or  deed 
of  trust  there  may  be  pledged  and  transferred  to  the  asso- 
ciation for  the  payment  of  the  loan,  free  shares,  the  with- 
drawal value  of  which  under  the  by-laws  at  the  time  of 
such  borrowing  shall  exceed  the  amount  borrowed  and 
interest  thereon  for  six  months.  At  the  discretion  of  Jhe 
board  of  directors  the  borrower  may  repay  the  loan  and 
all  arrears  and  interest  and  fines  thereon  at  any  time 
upon  surrender  of  the  shares  pledged  for  the  loan.  En. 
Stats.  1891,  255.     Am'd.  1897,  30;  1900-01,  268. 

§639.  Forfeiture — arrears  in  payments.  Whenever  any 
member  shall  be  six  months  in  arrears  in  the  payment 
of  his  dues  upon  free  shares,  the  secretary  shall  give  him 
notice  thereof,  in  writing,  and  a  statement  of  his  arrear- 
ages, by  mailing  the  same  to  him  at  the  last  postoffice 
address  given  by  him  to  the  association,  and  if  he  shall 
not  pay  the  same  within  two  months  thereafter,  the  board 
of  directors  may,  at  their  option,  declare  his  shares  for- 
feited; and  at  the  time  of  such  forfeiture,  the  withdrawal 
value  thereof  shall  be  determined  and  stated,  and  the  de- 
faulting member  shall  be  entitled  to  withdraw  the  same 


209  LAND    AND    BUILDING    CORPORATIONS.  §§  640-643 

without  interest,  upon  such  notice  as  shall  be  required 
of  a  withdrawing  shareholder.  Whenever  a  borrowing 
member  shall  be  six  months  in  arrears  in  the  payment  of 
his  dues,  or  interest,  or  premium,  the  v/hole  lean  shall 
become  due  at  the  option  of  the  board  of  directors;  and 
they  may  proceed  to  enforce  collection  upon  the  securities 
held  by  the  association.  The  withdrav/al  value,  at  the 
lime  of  the  commencement  of  the  action,  of  all  shares 
pledged  as  collateral  security  for  the  loan,  shall  be  applied 
to  the  payment  of  the  loan,  and  said  shares,  from  that 
time,  shall  be  deemed  surrendered  to  the  association.  En. 
March  21,  1872.  Am'd.  1873-4,  217.  Rep.  1891,  252.  En. 
Stats.  1891,  255. 

Cal.Rep.Cit.   93,  306;   116,  414;   131,  341. 

§  640.  Purchase  of  real  estate.  Any  such  association 
may  purchase  at  any  sale,  public  or  private,  any  real 
estate  upon  which  it  may  have  a  mortgage,  judgment,  lien, 
or  other  incumbrance,  or  in  which  it  may  have  an  interest; 
and  may  sell,  convey,  lease,  or  mortgage  the  same,  at 
pleasure,  to  any  person  Or  persons.  En.  March  21,  1872. 
Rep.  1891,  252.     En.  Stats.  1891,  255. 

Cal.Rep.Cit.   93,  309;   131,  341. 

§  641.  Borrowing  mcr.ey.  Any  association  organized  in 
pursuance  of  the  provisions  of  this  act  may  borrow  money 
for  the  purpose  of  making  loans  or  paying  withdrawals. 
En.  March  21,  1872.     Rep.  1891,  252.     En.  Stats.  1891,  255. 

Cal.Rep.Cit.  131.  341. 

§  642.  Profits  and  losses.  Profits  and  losses  shall  be 
apportioned  at  least  annually,  and  shall  be  apportioned  to 
all  the  shares  in  each  series  outstanding  at  the  time  of 
such  apportionment,  according  to  the  actual  value  of  such 
shares  as  distinguished  from  their  withdrawal  value.  En. 
March  21,  1872.     Rep.  1891,  252.     En.  Stats.  1891,  255. 

Cal.Rep.Cit.  131,   342. 

§  643.  Membership.  Any  person  of  full  age  and  sound 
mind  may  become  a  member  of  the  association  by  taking 
one  or  more  shares  therein,  and  subscribing  to  the  by- 
laws, and  annexing  to  his  signature  his  postoffice  address. 
A  minor  may  hold  shares  in  the  name  of  the  parent,  guar- 
dian, or  next  friend  as  trustee.  The  shares  of  stock  in 
any   such   corporation  held   by   any   person,   to   the   value 


§  644  LAND    AND    BUILDING    CORPORATIONS.  210 

of  one  thousand  dollars,  shall  be  exempt  from  execution. 
En.  March  21,  1872.     Rep.  1891,  252.     En.  Stats.  1891,  256. 
Cal.Rep.Cil.  131,   342. 

§  644.  Annual  report.  Every  association  organized  un- 
der the  provisions  of  this  act,  and  every  other  association 
doing  a  like  business,  shall  annually  make  a  full  report, 
in  writing,  of  the  affairs  and  condition  of  such  corporation, 
within  thirty  days  after  its  annual  meeting,  to  the  bank 
commissioners  of  this  state.  Such  report  shall  be  verified 
by  the  oath  of  the  officers  making  the  same,  and  a  copy 
of  the  same  shall  be  delivered  to  every  stockholder,  from 
the  office  of  the  corporation,  who  may  call  for  such  report. 
Every  association  shall  make  any  further  reports  which 
the  said  commissioners  may  require,  and  in  such  form  and 
as  to  such  matters  relating  to  the  condition  and  conducting 
of  the  business  of  the  association  as  such  commissioners 
may  designate;  and  said  bank  commissioners  may  at  any 
time  examine  into  the  affairs  of  any  and  every  of  said 
associations.  Any  willful  false  swearing  in  making  and 
verifying  said  reports  shall  be  deemed  perjury.  Any 
such  association  which  shall  fail  to  furnish  tbe  bank  com- 
missioners any  such  report  required,  witliin  thirty  days  after 
demand,  shall  forfeit  the  sum  of  ten  dollars  per  day  for 
every  day  such  report  shall  be  delayed  or  withheld;  which 
may  be  recovered  in  an  action  brought  by  the  attorney- 
general  in  the  name  of  the  people  of  this  state;  and  all 
moneys  so  recovered  shall  be  paid  to  the  treasurer  of  the 
state,  who  shall  pay  the  same  into  the  "bank  commission- 
ers' fund."  The  state  bank  commissioners  shall  annually 
publish  a  full  report  of  the  condition  of  all  associations 
formed  under  the  provisions  of  this  title,  and  every  other 
association  doing  a  like  business  in  this  state,  in  the  same 
manner  as  they  are  now  required  to  do  in  reference  to  sav- 
ings banks-.  En.  March  21,  1872.  Rep.  1891,  252.  En. 
Stats.  1891,  256. 

Cal.Rep.Cit.   131,  342;   131,  344. 

Section  1  of  the  act  of  1891,  p.  256,  amending  this  section, 
provided  that  this  section  should  apply  to  all  such  asso- 
ciations whether  organized  before  or  after  the  passage  of 
the  act. 

See  also  Stats.  1867-8,  539,  sec.  1. 


211  LAND     AND     BUILDING     CORPORATIONS.  §§  645,  646 

§  645.  Foreign  corporations,  deposit  by.  l\o  mutual 
building  and  loan  association,  or  company,  association,  or 
corporation  organized  under  the  lav/s  of  any  other  state 
or  territory,  to  carry  on  a  business  of  a  lilie  character 
to  that  authorized  by  this  title,  shall  be  allowed  to  do 
business  or  to  sell  their  stock  in  this  state  without  first 
having  deposited  with  the  state  controller  or  secretary 
of  state  the  sum  of  fifty  thousand  dollars  in  money,  or 
United  States  or  municipal  bonds  of  this  state,  or  in  mort- 
gages upon  real  estate  located  within  this  state,  as  a 
guaranty  fund  for  the  protection  and  indemnity  of  residents 
of  the  state  of  California  with  whom  such  companies, 
associations,  or  corporations  shall  do  business;  the  fund 
so  deposited  to  be  paid  by  the  custodian  thereof  to  the 
residents  of  California  only,  and  not  then  until  proof  of 
claim  by  final  judgment  has  been  filed  with  the  custodian 
of  said  fund  against  such  foreign  company,  association, 
or  corporation.  Any  of  the  securities  so  deposited  may 
be  withdrawn  at  any  time  upon  others,  herein  provided 
tor,  of  like  amount  being  substituted  in  lieu  thereof.  Any 
person  or  persons  who  shall  be  found  in  this  state  as  agent, 
or  in  any  other  capacity,  representing  such  foreign  com- 
pany, association,  or  corporation  which  has  not  complied 
with  the  provisions  of  this  section  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  shall  be  punished 
by  a  fine  not  exceeding  one  thousand  dollars  or  by  impris- 
onment in  the  county  jail  not  exceeding  twelve  months,  or 
by  both  such  fine  and  imprisonment.  En.  March  21,  1872. 
Rep.  1891,  252.     En.  Stats.  1891,  256. 

Cal.Rep.Cit.   131,   342. 

§  646.  Electing  to  continue  business.  Any  'building  and 
loan  association,  now  existing  and  heretofore  incorporated, 
desiring  to  continue  its  existence  under  the  provisions  of 
this  title,  may  do  so  if  the  holders  of  a  majority  of  the 
stock,  at  their  regular  annual  meeting,  or  at  a  special 
meeting  of  the  stockholders  called  for  that  purpose,  shall 
so  elect.  The  notice  of  the  meeting,  whether  regular  or 
special,  shall  state  as  one  of  the  objects  of  the  meeting  to 
vote  on  the  question  whether  the  corporation  shall  con- 
tinue its  existence  under  the  provisions  of  this  title;  and 
the  notice  of  meeting  shall  be  published  as  required  by  sec- 
tion three  hundred  and  one;    and,  in  addition  thereto  a 


§§  Gi7-6-lS>^  LAND    AND    BUILDING    CORPORATIONS.  212 

similar  notice  shall  be  mailed  to  each  stockholder  at  his 
postoffice  address.  Within  thirty  days  after  the  holders 
of  a  majority  of  the  stock  at  any  such  meeting  have  voted 
to  continue  the  existence  of  the  corporation  under  the 
provisions  of  this  title,  the  secretary  of  the  corporation 
shall,  under  oath,  make  and  subscribe,  as  such  secretary, 
a  certificate,  in  writing,  stating  the  calling  of  such  meet- 
ing, the  fact  that  the  holders  of  a  majority  of  the  stock 
voted  to  continue  the  existence  of  the  corporation  under 
this  title,  which  shall  be  filed  in  the  office  of  the  county 
clerk  in  which  its  original  articles  of  incorporation  have 
been  filed,  and  shall  file  in  the  office  of  the  secretary  of 
state  a  certified  copy  thereof,  according  to  the  provisions 
of  section  two  hundred  and  ninety-six;  and  the  secretary 
of  state  shall  issue  his  usual  certificate,  as  provided  in  said 
section.  Thereupon,  such  corporation  shall  be  subject  to 
all  the  provisions  of  this  title,  as  though  originally  incor- 
porated under  the  provisions  hereof,  except  that  no  change 
in  its  name  or  amount  of  capital  stock  shall  be  made;  but 
the  name  shall  be  the  same  as  contained  in  the  orisinal 
articles.  En.  March  21,  1872.  Rep.  1873-4,  217.  En.  Stats. 
1891,  257. 

Cal.Rep.Cit.   131,  339;   131,  341;   131,  342. 

§  647.  Subject  to  provisions  relating  to  bank  commis- 
sioners. All  corporations  doing  the  business  of  building 
and  loan  associations  in  this  state  shall  be  subject  to 
the  provisions  of  this  title  relating  to  the  bank  commis- 
sioners. En.  March  21,  1872.  Rep.  1891,  252.  En.  Stats. 
1891,  257. 

Cal.Rep.Cit.   93,  306;   116,  414;   131,  341;   131,  342. 

§  648.  Definition  of.  The  name  "building  and  loan  as- 
sociation," as  used  in  this  act,  shall  include  all  corpora- 
tions, societies,  or  organizations  or  associations  doing  a 
savings  and  loan  or  investment  business  on  the  building- 
society  plan,  viz.:  loaning  its  funds  to  its  members  or  its 
shareholders,  and  whether  issuing  certificates  of  stock 
which  mature  at  a  time  fixed  in  advance  or  not.  En.  March 
21,  1872.      Rep.   1873-4,   217.     En.   Stats.   1891,   257. 

Cal.Rep.Cit.   127,  39;   131,  342. 

§  648i/^.  Taxation  of.  The  provisions  of  an  act  entitled 
"An  act  imposing  a  tax  on  the  issue  of  certificates  of  stock 
corporations,"  approved  April  first,  eighteen  hundred  and 


213      COLLEGES    AND    SEMINARIES    OP    LEARNING.      §§  649,  650 

seventy-eight,  shall  not  be  deemed  and  held  to  be  applica- 
ble to  any  certificates   issued  to  and  transferred  by  the 
members  or  stockholders  of  any  association  organized  un- 
der or  governed  by  this  act.     En.  Stats.  1891,  257. 
Cal.Rep.Cit.   136,   525. 


TITLE    XVII. 

COLLEGES  AND  SEMINARIES  OF  LEARNING. 

§  649.     Articles  of  incorporation. 

§   650.      Board  of  trustees,  powers  of. 

§  651.     Existing   institutions  may  reincorporate  under  this  act. 

§  649.  Articles  of  incorporation.  Any  number  of  per- 
sons who  may  desire  to  establish  a  college  or  seminary 
of  learning  may  incorporate  themselves  as  provided  in  this 
part,  except  that  in  lieu  of  the  requirements  of  section  two 
hundred  and  ninety,  the  articles  of  incorporation,  shall 
contain: 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  organized. 

3.  The  place  where  the  college  or  seminary  is  to  be 
conducted. 

4.  The  number  of  its  trustees,  which  shall  not  be  less 
than  five  nor  more  than  fifteen,  and  the  names  and  resi- 
dences of  the  trustees.  The  term  for  which  the  trustees 
named  and  their  successors  are  to  hold  office  may  also  be 
stated.  If  it  is  desired  that  the  trustees,  or  any  portion  of 
them,  shall  belong  to  any  organization,  society,  or  church, 
such  limitation  shall  be  stated. 

5.  The  names  of  those  who  have  subscribed  money 
or  property  to  assist  in  founding  the  seminary  or  college, 
together  with  the  amount  of  money  and  description  of  prop- 
erty subscribed.     En.   Stats.  1885,  133. 

§  650.  Board  of  trustees,  powers  of.  Unless  otherwise 
provided  in  the  articles  of  incorporation  the  board  of  trus- 
tees shall,  as  soon  as  organized,  so  classify  themselves  that 
one-fifth  of  their  number  shall  go  out  of  office  every  year, 
and  thereafter  the  trustees  shall  hold  office  for  five  years. 
A  majority  of  the  trustees  shall  constitute  a  quorum  for 
the  transaction  of  business,  and  the  office  of  the  corpora- 
tion shall  be  at  the  college  or  seminary. 


§  650        COLLEGES    AND     SEiMINARIES     OF     LEARNING.  21-i 

The  trustees  shall  have  power: 

1.  To  elect,  by  ballot,  annually  one  of  their  number  as 
president  of  the  board. 

2.  Upon  the  death,  removal  out  of  the  state,  or  other 
vacancy  in  the  office,  or  expiration  of  the  term  of  any 
trustee,  to  elect  another  in  his  place;  provided,  that  where 
there  are  graduates  of  the  institution,  such  graduates  may, 
under  such  rules  as  the  board  shall  prescribe,  nominate 
persons  to  fill  vacancies  in  the  board  of  trustees.  Such 
nominations  shall  be  considered  by  the  board,  but  it  may 
reject  any  or  all  such  nominations,  and  of  its  own  motion 
appoint  others. 

3.  To  elect  additional  trustees;  provided,  the  whole 
number  elected  shall  never  exceed  fifteen  at  any  one  time. 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall 
absent  himself  from  eight  succeeding  meetings  of  the 
board. 

5.  To  receive  and  hold,  by  purchase,  gift,  devise,  be- 
quest, or  grant,  real  or  personal  property  for  educational 
purposes  connected  with  the  corporation,  or  for  the  benefit 
of  the  institution. 

6.  To  sell,  mortgage,  lease,  and  otherwise  use  and  dis- 
pose of  the  property  of  the  corporation  in  such  manner 
as  they  shall  deem  most  conducive  to  the  prosperity  of  the 
corporation. 

7.  To  direct  and  prescribe  the  course  of  study  and  dis- 
cipline to  be  observed  in  the  college  or  seminary. 

8.  To  appoint  a  president  of  the  college  or  seminary, 
who  shall  hold  his  office  during  the  pleasure  of  the  trus- 
tees. 

9.  To  appoint  such  professors,  tutors,  and  other  officers 
as  they  shall  deem  necessary,  who  shall  hold  their  offices 
during  the  pleasure  of  the  trustees. 

10.  To  grant  such  literary  honors  as  are  usually  granted 
by  any  university,  college,  or  seminary  of  learning  in  the 
United  States,  and  in  testimony  thereof  to  give  suitable 
diplomas  under  their  seal,  and  the  signature  of  such  of- 
ficers of  the  corporation  and  the  institution  as  they  shall 
deem  expedient. 

11.  To  fix  salaries  of  the  president,  professors,  and  other 
officers  and  employees  of  the  college  or  seminary. 


215  CONSOLIDATION     OF     COLLEGES,     ETC.  §§  651,  652 

12.  To  make  all  by-laws  and  ordinances  necessary  and 
proper  to  carry  into  effect  the  preceding  powers  and  neces- 
sary to  advance  the  interests  of  the  college  or  seminary; 
provided,  that  no  by-laws  or  ordinance  shall  conflict  with 
the  constitution  or  laws  of  the  United  States,  or  of  this 
state.     En.  Stats.  1885,  133. 

§  651.  Existing  institutions  may  reincorporate  under 
this  act.  Any  educational  corporation,  or  body  claiming 
to  be  such,  now  existing,  may,  by  a  unanimous  vote  of  those 
of  its  trustees  present  at  a  special  meeting  called  for  that 
purpose,  and  of  which  due  notice  shall  be  given  to  each 
trustee,  convey  all  its  property,  rights,  and  franchises  to 
a  corporation  organized  under  this  title.  The  fact  that 
due  notice  of  the  meeting  was  given  to  each  trustee  shall 
be  conclusivelj'  proven  by  the  entries  in  the  minutes  of  the 
corporation  or  body  making  the  conveyance.  Said  minutes 
shall  be  certified  to  be  correct  by  the  president  and  secre- 
tary.    En.  Stats.  1885,  134. 


TITLE    XVIII. 

CONSOLIDATION    OF    COLLEGES    AND    INSTITUTIONS    OF 
HIGHER    EDUCATION. 

§  652.  Societies  and  organizations  authorized  to  consolidate.  Trus- 
tees.    Annual   reports. 

S  653.  Tran'jfer  of  property.  Indebtedness.  Specific  grants.  Dis- 
solution. 

§  652.  Societies  and  organizations  authorized  to  con- 
solidate. Trustees.  Annual  reports.  Whenever  any  be- 
nevolent, religious,  or  fraternal  organization  or  society, 
having  a  grand  lodge,  assembly,  conference,  or  other  legis- 
lative or  representative  head  in  the  state  of  California, 
having  two  or  more  colleges  or  institutions  of  higher  edu- 
cation under  its  patronage,  shall,  for  the  purpose  of  greater 
efficiency  and  simplicity  in  the  administration  of  its  educa- 
tional interests,  desire  to  consolidate  such  institutions 
under  one  management,  such  organization  or* society  shall 
be  and  is  authorized  to  consolidate  such  institutions  undei- 
one  management  by  complying  with  the  following  provi- 
sions: 


S  653  CONSOLIDATION    OF     COLLEGES,     ETC.  216 

First.  Such  grand  lodge,  assembly,  conferente,  or  other 
legislative  or  representative  head  having  authorized  a  con- 
solidation of  its  institutions,  a  new  corporation  shall  be 
formed.  The  ^board  of  trustees  of  the  new  corporation 
shall  at  first  consist  of  the  persons  constituting  the  boards 
of  trustees  of  the  several  institutions,  respectively,  thus 
consolidated,  and  others;  provided,  the  number  of  trustees 
shall  not  exceed  forty-five.  The  board  of  trustees  shall 
be  so  classified  that  the  term  of  office  of  one  third  of  its 
number  shall  expire  each  year;  the  successors  of  such 
trustees,  as  their  terms  expire,  shall  be  elected  by  such 
grand  lodge,  assembly,  conference,  or  other  legislative  or 
representative  head  at  its  annual  meeting. 

Second.  The  said  board  of  trustees  shall  report  annually 
to  the  grand  lodge,  assembly,  conference,  or  other  legisla- 
tive or  representative  head  controlling  it,  the  condition  of 
affairs  of  such  corporation  and  the  amount  and  manner 
of  its  receipts  and  expenditures.    En.  Stats.  1893,  4. 

§  653.  Transfer  of  property.  Indebtedness.  Specific 
grants.  Dissolution.  The  several  boards  of  trustees  of 
the  institutions  thus  consolidated  shall  be  and  are  hereby 
authorized  and  directed  to  transfer  all  property,  real  and 
personal,  held  by  them,  to  the  new  corporation,  as  herein 
constituted,  together  with  all  powers,  privileges,  and  au- 
thority conferred  upon  or  enjoyed  by  them  under  their 
respective  charters  or  acts  of  incorporation.  The  new 
corporation  receiving  such  property  shall  assume  all  in- 
debtedness and  liabilities  of  such  institutions  as  are  thus 
consolidated,  but  shall  not  transfer  such  property  from 
one  location  to  another,  except  by  an  aflirmative  vote  of 
not  less  than  three  fourths  of  the  said  board  of  trustees 
of  the  new'corporation,  nor  divert  specific  grants,  donations, 
or  bequests  from  the  purposes  for  which  such  grants,  dona- 
tions, or  bequests  were  made.  That  after  the  boards  of 
trustees  have  conveyed  the  property,  real  and  personal, 
of  the  various  institutions  to  the  new  corporation,  as  here- 
inabove provided,  and  the  same  has  been  accepted  by  the 
said  new  cosporation,  then  the  franchises  held  by  the  cor- 
porations thus  consolidating  shall  cease,  and  the  said  cor- 
porations shall  be  thereby  dissolved.  En.  Stats.  1893,  4. 
Am'd.  1895,  40. 


DIVISION  SECOND. 


Part  I.     Property  in   General,   §§  654-749. 

II.     Real    or    Immovable    Property,    §§ 
755-940. 

III.     Personal   or   Movable  Property,   §§ 
946-994. 

lY.     Acquisition   of  Property,   §§   1000- 
1425. 


ClT.  Code— 10 


PART    I. 


PROPERTY    IN    GENERAIi. 

Title  I.     Nature  of  Property,  §§  654-663. 
II.     Ownership,   §§  669-742. 
III.     General  Definitions,  §§   748-749. 


TITLE    I. 

NATURE    OP    PROPERTY. 

§  654.  Property,  what. 

§  655.  In  what  property  may  exist. 

§  656.  Wild  animals. 

§  657.  Real   and  personal. 

§  658.  Real  property. 

§  659.  Land. 

§  660.  Fixtures. 

§  661.  Fixtures  attached  to  mines. 

§  662.  Appurtenances. 

§  663.  Personal  property. 

§  654.  Property,  what.  The  ownership  of  a  thing  is  the 
right  of  one  or  more  persons  to  possess  and  use  it  to  the 
exclusion  of  others.  In  this  code,  the  thing  of  which 
there  may  be  ownership  is  called  property.  En.  March  21, 
1872. 

Cal.Rep.Cit.   109,  37;   116,  343;    126,  119;   131,  307. 

As  to  the  meaning  of  "property"  for  the  purposes  of  taxa- 
tion:    See  Pol.  Code,  sec.  3617. 
Real  property:     See  sec.  658. 
Personal  property:     See  sees.  663,  953  et  seq. 
Franchises  as  property:     See  ante,  sec.  388. 

§  655.  In  what  property  may  exist.  There  may  be  own- 
ership of  all  inanimate  things  which  are  capable  of  appro- 
priation or  of  manual  delivery;  of  all  domestic  animals; 
of  all  obligations;  of  such  products  of  labor  or  skill  as  the 
composition  of  an  author,  the  goodwill  of  a  business, 
trademarks  and  signs,  and  of  rights  created  or  granted  by 
statute.     En.  March  21,  1872. 

Cal.Rep.Cit.  126,  119  ;   IS.'^,  71. 


S§  656-660  NATURE    OF    PROPERTY.  220 

Counterfeiting  a  trademark,  a  misdemeanor:    Pen.  Code, 
sec.  350. 
Products  of  the  mind:     See  post,  sees.  980  at  seq. 
Trademarlts:     See  post,  sec.  991. 
Goodwill:     See  post,  sec.  993. 
Title  deeds:     See  post,  sec.  994. 
Domestic  animals,  larceny  of:     See  Pen.  Code,  sec.  491. 

§  656.  Wild  animals.  Animals  wild  by  nature  are  the 
subjects  of  ownership,  while  living,  only  when  on  the  land 
of  the  person  claiming  them,  or  when  tamed,  or  taken  and 
held  in  the  possession,  or  disabled  and  immediately  pur- 
sued.    En.  March  21,  1872. 

Cal.Rep.Cit.  108,  244;   114,  388;   119,  321;   136,  531. 

§  657.     Real  and  personal.     Property  is  either: 

1.  Real  or  immovable;   or, 

2.  Personal  or  movable.     En.  March  21,  181A. 
Cal.Rep.Cit.  101,  120 ;   113,  353. 

§  658.  Real  property.  Real  or  immovable  property  con- 
sists of: 

1.  Land; 

2.  That  which  is  affixed  to  land; 

3.  That  which  is  incidental  or  appurtenant  to  land; 

4.  That  which  is  immovable  by  law.    En.  March  21,  1872. 

Cal.Rep.Cit.      60,410;      62,184;      77,402;      80,250;      86,338; 
109,     36;   lis,  636;   126,  605;   138,  586. 

Land  defined:     See  sec.  659,  infra. 

Fixtures:     See  sees.  660  et  seq.,  infra. 

Appurtenances:     See  sec.  662. 

§  659.  Land.  Land  is  the  solid  material  of  the  earth, 
whatever  may  be  the  ingredients  of  which  it  is  composed, 
whether  soil,  rock,  or  other  substance.  En.  March  21, 
1872. 

Cal.Rep.Cit.  118,   636. 

§  660.  Fixtures.  A  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots  as  in  the  case  of  trees, 
vines,  or  shrubs;  or  imbedded  in  it,  as  in  the  case  of  walls; 
or  permanently  resting  upon  it,  as  in  the  case  of  buildings; 
or  permanently  attached  to  what  is  thus  permanent,  as  by 


Cal.Rep.Cit.  52.  395 
77,  402;  79,  590 
93,  368;   109,     36 


221  OWNER.  §§  661-669 

means   of   cement,   plaster,    nails,   bolts,    or    screws.      En. 

March  21,  1872. 

Cal.Rep.Cit.     51,  596;      52,  394;      52,  396;      70.       6;      77,  191; 
80,  250;      86,  338;      91,  379;   118,  636;   126,  605;   138,  586. 

§661.  Fixtures  attached  to  mines.  Sluice-boxes,  flumes, 
hose,  pipes,  railway  tracks,  cars,  blacksmith  shops,  mills, 
and  all  other  machinery  or  tools  used  in  working  or  de- 
veloping a  mine,  are  to  be  deemed  affixed  to  the  mine.  En. 
March  21,  1872. 

Cal.Rep.Cit.     76,  583;     76,  585;     80,  512;   102,  142;   118,  153; 
118,  636. 

§  662,  Appurtenances.  A  thing  is  deemed  to  be  inci- 
dental or  appurtenant  to  land  when  it  is  by  right  used 
with  the  land  for  its  benefit,  as  in  the  case  of  a  way,  or 
watercourse,  or  of  a  passage  for  light,  air,  or  heat  from  or 
across  the  land  of  another.     En.  March  21,  1872. 

52,  396;      56,     13;      62,  184;      67,  497; 
80,315;      86,338;      91.155;      91,190; 
110,  585;    120,  490;    120,  493. 

Easements  and  servitudes:     See  post,  sees.  801  et  seq. 

§  663.     Personal   property.     Every  kind  of  property  that 
is  not  real  is  personal.    En.  March  21,  1872. 
Cal.Rep.Cit.  113,   353. 

Personal  property:  See  ante,  sec.  14,  subd.  3;  and  Pol. 
Code,  sec.  3617. 


TITLE    II. 

OWNERSHIP. 

Chapter  I.  Owners,  §§  669-672. 

II.  Modifications  of  Ownership,  §§  678-726. 

III.  Rights  of  Owners,  §§  732,  733. 

IV.  Termination  of  Ownership,  §§  739-742. 

CHAPTER    I. 

OWNERS. 
§  669.     Owner. 

§   670.     Property  of  the  state. 
§   671.     Who  may  own  property. 
§  672.     Aliens  Inheriting  must  claim  within  five  years, 

§  669.    Owner.    All  property  has  an  owner,  whether  that 
owner  is  the  state,  and  the  property  public,  or  the  owner 


J§  6T0-G72  OWNERS.  222 

an  Individual,  and  the  property  private.  The  state  may 
also  hold  property,  as  a  private  proprietor.  En.  March  21, 
1872. 

Cal.Rep.Cit.  73,  102. 

§  670.  Property  of  the  state.  The  state  Is  the  owner  of 
all  land  below  tidewater,  and  below  ordinary  nign-water 
mark,  bordering  upon  tide-water  within  the  state;  of  all  land 
below  the  water  of  a  navigable  lake  or  stream;  of  all 
property  lawfully  appropriated  by  it  to  its  own  use;  of  all 
property  dedicated  to  the  state;  and  all  property  of  which 
there  is  no  other  owner.  En.  March  21,  1872.  Am'd.  1873-4, 
217. 

Cal.Rep.Cit.   62,  259  ;    69,  127  :   70,  209  ;   138,  558. 

Property  of  the  state:     Pol.  Code,  sees.  40-44. 
Public  lands:     See  Pol.  Code,  sees.  3395  et  seq. 
Escheat:     See  post,  sees.  1405,  1406. 

§  671.     Who   may   own    property.    Any   person,   whether 

citizen  or  alien,  may  take,  hold,  and  dispose  of  property, 

real  or  personal,  within  this  state.     En.  March  21,  1872. 

Am'd.  1873-4,  218. 

Cal.Rep.Cit.     65,594;      65,595;     67,382;     67,386;     70.155; 
76,  296;   127,  434;    127,  435;   127.  436;   127,  437. 

Alien's  right  to  inherit  property:  See  post,  sees.  1404 
et  seq. 

§  672.  Aliens  inheriting  must  claim  within  five  years. 
If  a  nonresident  alien  takes  by  succession,  he  must  appear 
and  claim  the  property  within  five  years  trom  the  time  of 
succession,  or  be  barred.  The  property  in  such  case  is  dis- 
posed of  as  provided  in  title  VIII,  part  III,  Code  o£  Civil 
Procedure.     En.  March  21,  1872. 

Cal.Rep.Cit.  65,  594 ;   67,  383 ;  67.  386 ;   70,  156 ;  70,  157, 

Escheated  estates:     See  Code  Civ.  Proc,  sees.  1269-1272. 


223  MODIFICATIONS    OP    OWNERSHIP.  §§  678-680 

CHAPTER    n. 

MODIFICATIONS    OF    OWNERSHIP, 

Article  I.  Interests  in  Property,  §§  678-703. 

II.  Conditions  of  Ownersliip,  §§  707-711, 

III.  Restraints  upon  Alienation,  §§  715-718. 

IV.  Accumulations,  §§  722-726. 

ARTICLE    L 
INTERESTS    IN    PROPERTY. 

i  678.  Ownership,  absolute  or  qualified. 

§   679.  When   absolute. 

§  680.  When  qualified. 

§  681.  Several  ownership,  what. 

§  682.  Ownership  of  several  persona. 

§  683.  Joint  interest,  what. 

§  684.  Partnership  interest,  what, 

§   685.  Interest  in  common,  what. 

§  686.  What  interests  are  in  common. 

§  687.  Community  property. 

§  688.  Interests  as  to  time. 

§   689.  Present  interest,  what- 

S   690.  Future  interest,  what. 

S  691.  Perpetual  interest,  what. 

S  692.  Limited  Interest,  what. 

!)   693.  Kinds  of  future  interests. 

§   694.  Vested  interests. 

?   695.  Contingent  interests. 

§   696.  Two  or  more  future  interests. 

i  697.  Certain  future  interests  not  to  be  void. 

§   698.  Posthumous  children. 

§  699.  Qualities  of  expectant  estates. 

§  700.  Same. 

§  701.  Interests  In  real  property* 

§  702.  Same. 

§  703.  What  future  interests  are  recognized. 

§678.    Ownership,  absolute  or  qualified.    The  ownership 

of  property  is  either: 

1.  Absolute;  or, 

2.  Qualified.    En.  March  21,  1872, 
Cal.Rep.Cit.  107,  420 ;   116,  345  ;   131,  307. 

§  679.  Wiien  absolute.  The  ownership  of  property  Is 
absolute  when  a  single  person  has  the  absolute  dominion 
over  it,  and  may  use  it  or  dispose  of  it  according  to  his 
pleasure,  subject  only  to  general  laws.    En.  March  21,  1872. 

Cal.Rep.Cit.  105,  470;   106,  680;   109,  555;   112,  399;   116,  345. 

§  680.  When  qualified.  The  ownership  of  property  is 
qualified: 


S5  681-686  MODIFICATIONS    OP    OWNERSHIP.  224 

1.  When  it  is  shared  with  one  or  more  persons; 

2.  When  the  time  of  enjoyment  is  deferred  or  limited; 

3.  When  the  use  is  restricted.     En.  March  21,  1872. 
Cal.Rep.Cit.  107,  420;   112,  399;   116.  345;   133,  422. 

§  681.  Several  ownership,  what.  The  ownership  of 
property  by  a  single  person  is  designated  as  a  sole  or  sev- 
eral ownership.    En.  March  21,  1872. 

§682.  Ownership  of  several  persons.  The  ownership  of 
property  by  several  persons  is  either: 

1.  Of  joint  interests; 

2.  Of  partnership   interests; 

3.  Of  interests  in  common; 

4.  Of  community  interest  of  husband  and  wife.  En. 
March  21,  1872. 

Cal.Rep.Cit.   112,  399;   116,  342.     Subd.   3—136,  463, 

§  683.  Joint  interest,  what.  A  joint  interest  is  one 
owned  by  several  persons  in  equal  shares,  by  a  title  created 
by  a  single  will  or  transfer,  when  expressly  declared  in 
the  will  or  transfer  to  be  a  joint  tenancy,  or  when  granted 
or  devised  to  executors  or  trustees  as  joint  tenants.  En. 
March  21,  1872. 

Cal.Rep.Cit.  127,  149. 

See  sees.  685,  686,  infra. 

§684.  Partnership  interest,  what.  A  partnership  in- 
terest is  one  owned  by  several  persons  in  partnership,  for 
partnership  purposes.    En.  March  21,  1872. 

Cal.Rep.Cit.   65.  48 ;   102,  386. 

Partnership:     See  post,  sees.  2395  et  seq. 

§  685.  Interest  in  common,  what.  An  interest  In  com- 
mon is  one  owned  by  several  persons,  not  in  joint  owner- 
ship or  partnership.     En.  March  21,  1872. 

Tenancy  in  common:     See  ante,  sec.  683;  post,  sec.  686. 

Partition:     See  Code  Civ.  Proc,  sees.  752  et  seq. 

Husband  and  wife  as  tenants  in  common;  See  ante,  sec. 
161. 

Devise  or  legacy  to  two  or  more  makes  them  owners 
in  common:     See  post,  sec.  1350. 

§  686.  What  interests  are  in  common.  Every  interest 
created  in  favor  of  several  persons  in  their  own  right  is 


225  MODIFICATIONS    OF    OWNERSHIP.  §§  687-692 

an  interest  in  common,  unless  acquired  by  them  in  partner- 
ship, for  partnership  purposes  or  unless  declared  in  its 
creation  to  be  a  joint  interest,  as  provided  in  section  683, 
or  unless  acquired  as  community  property.  En.  March  21, 
1872. 
Interests  in  common:    See  ante,  sees.  683,  685. 

§687.  Community  property.  Community  property  is 
property  acquired  by  husband  and  wife,  or  either,  during 
marriage,  when  not  acquired  as  the  separate  property  of 
either.    En.  March  21,  1872. 

Cal.Rep.Cit.   70,  284  ;   116,  342. 

Community  property:     See  ante,  sec.  164. 

§  688.  Interests  as  to  time.  In  respect  to  the  time  Of 
enjoyment,  an  interest  in  property  is  either: 

1.  Present  or  future;  and, 

2.  Perpetual  or  limited.    En,  March  21,  1872. 
Cal.Rep.Cit.  107,  420. 

§  689.  Present  interest,  what.  A  present  interest  en- 
titles the  owner  to  the  immediate  possession  of  the  prop- 
erty.    En.  March  21,  1872. 

Cal.Rep.Cit.  107,  420. 

§  690.  Future  interest,  what.  A  future  interest  entitles 
the  owner  to  the  possession  of  the  property  only  at  a 
future  period.     En.  March  21,  1872. 

Cal.Rep.Cit.  79,  622  ;   104,  301 ;   107,  420 ;   122,  627 ;  133,  422. 

Accumulations  as  future  interests:  See  sees.  722  et  seq., 
and  733. 

Conditions  upon  the  enjoyment  of  estates:  See  sees.  707 
et  seq. 

Terminating  future  interests:     See  sees.  739  et  seq. 

§  691.  Perpetual  interest,  what.  A  perpetual  interest 
has  a  duration  equal  to  that  of  the  property.  En.  March  21, 
1872. 

§  692.  Limited  interest,  what.  A  limited  interest  has 
a  duration  less  than  that  of  the  property.  En.  March  21, 
1872. 


J§  693-700  MODIFICATIONS    OF    OWNERSHIP.  226 

§  693.  Kinds  of  future  interests.  A  future  interest  is 
either: 

1.  Vested;  or, 

2.  Contingent.     En.  March  21,  1872. 

§  694.     Vested    interests.     A    future    interest    Is   vested 

when  there  is  a  person  in  being  who  would  have  a  right, 

defeasible  or  indefeasible,  to  the  immediate  possession  of 

the    property,   upon   the    ceasing    of   the   Intermediate   or 

precedent  interest.     En.  March  21,  1872. 

Cal.Rep.Cit.     73,  102;   122,  627;   132,  574;   132,  578;   133,  422; 
136,  106. 

§  695.  Contingent  interests.  A  future  interest  is  con- 
tingent, whilst  the  person  in  whom  or  the  event  upon 
which,  it  is  limited  to  take  effect  remains  uncertain.  En. 
March  21,  1872. 

Cal.Rep.Cit.  120,   84;   120,   85. 

§  696.     Two    or    more    future    interests.    Two    or    more 

future  interests  may  be  created  to  take  effect  in  the  alter- 
native, so  that  if  the  first  in  order  fails  to  vest,  the  next 
in  succession  shall  be  substituted  for  it,  and  take  effect  ac- 
cordingly.    En.  March  21,  1872. 

§  697.  Certain  future  interests  not  to  be  void.  A  future 
interest  is  not  void  merely  because  of  the  improbability  of 
the  contingency  on  which  it  is  limited  to  take  effect.  En. 
March  21,  1872. 

§  698.  Postliumous  children.  When  a  future  interest 
is  limited  to  successors,  heirs,  issue,  or  children,  posthu- 
mous children  are  entitled  to  take  in  the  same  manner  as 
if  living  at  the  death  of  their  parent.    En.  March  21,  1872. 

Future  interests  defeated  by  birth  of  posthumous  child: 
See  post,  sec.  739. 

§  699.  Qualities  of  expectant  estates.  Future  interests 
pass  by  succession,  will,  and  transfer,  in  the  same  manner 
as  present  interests.    En.  March  21,  1872. 

Cal.Rep.Cit.   104,  301;   107,  420;  108,  649;   122,  627;   133,  422. 

§  700.  Same.  A  mere  possibility,  such  as  the  expect- 
ancy of  an  heir  apparent,  is  not  to  be  deemed  an  interest 
of  any  kind.    En.  March  21,  1872. 

Cal.Rep.Cit.   70,  286  ;   104,  584 ;    112,  393  ;   124,  44 ;    138,  361. 


227  MODIFICATIONS    OF    OWNERSHIP.  §§  701-709 

§701.  Interests  in  real  property.  In  respect  to  real  or 
immovable  property,  the  interests  mentioned  in  this  chap- 
ter are  denominated  estates  and  are  specially  named  and 
classified  in  part  II  of  this  division.     En.  March  21,  1872. 

§  702.  Same.  The  names  and  classification  of  interests 
in  real  property  have  only  such  application  to  interests  in 
personal  property  as  is  in  this  division  of  the  code  ex- 
pressly provided.     En.  March  21,  1872. 

§703.  What  future  interests  are  recognized.  No  luture 
interest  in  property  is  recognized  by  the  law,  except  such 
as  is  defined  in  this  division  of  the  code.     En.  March  21, 

1872. 


ARTICLE    II. 
CONDITIONS    OF    OWNERSHIP. 

§  707.  Fixing  the  time  of  enjoyment. 

§  708.  Conditions. 

§  709.  Certain   conditions  precedent  void. 

§  710.  Conditions  restraining  marriage  void.  • 

§  711.  Conditions  restraining  alienation  void. 

§  707.  Fixing  the  time  of  enjoyment.  The  time  when 
the  enjoyment  of  property  is  to  begin  or  end  may  be  de- 
termined by  computation,  or  be  made  to  depend  on  events. 
In  the  latter  case,  the  enjoyment  is  said  to  be  upon  con- 
dition.    En.  March  21,  1872. 

Cal.Rep.Cit.  109,   330. 

Conditional  legacies:     See  post,  sees.  1345  et  seq. 

§708.  Conditions.  Conditions  are  precedent  or  subse- 
quent. The  former  fix  the  beginning,  the  latter  the  ending, 
of  the  right.    En.  March  21,  1872. 

Conditional  obligations:     See  post,  sees.  1434-1442. 

Conditional  limitation. — Remainder  operating  to  abridge 
precedent  estate:     Post,  sec.  778. 

§709.  Certain  conditions  precedent  void.  If  a  condition 
precedent  requires  the  performance  of  an  act  wrong  of  it- 
self, the  instrument  containing  it  is  so  far  void,  and  the 
right  cannot  exist.  If  it  requires  the  performance  of  an 
act  not  wrong  of  itself,  but  otherwise  unlawful,  the  instru- 


§§  710-716  MODIFICATIONS    OF    OWNERSHIP.  228 

ment  takes  effect  and  the  condition  is  void.    En.  March  21, 
1872. 

Cal.Rep.Cit.  55,   566. 

§  710.  Conditions  restraining  marriage  void.  Conditiona 
imposing  restraints  upon  marriage,  except  upon  the  mar- 
riage of  a  minor  are  void;  but  this  does  not  affect  limita- 
tions where  the  intent  was  not  to  forbid  marriage,  but 
only  to  give  the  use  until  marriage.  En.  March  21,  1872. 
Am'd.  1873-4,  218. 

Contracts  in  restraint  of  marriage:     See  post,  sec.  1676. 

§711.  Conditions  restraining  alienation  void.  Condi- 
tions restraining  alienation,  when  repugnant  to  the  interest 
created,  are  void.     En.  March  21,  1872. 

Cal.Rep.Cit.   64,  366;   74,  143;   110,  426;    110,  427. 

See  also  post,  sees.  715,  772,  and  the  title  on  Uses  and 
Trusts,  post,  sees.  847  et  seq. 


ARTICLE    III. 

RESTRAINTS    UPON    ALIENATION. 

§  715.  How  long  it  may  be  suspended. 

§   716.  Future  interests  void,  which  suspend  power  of  alienation. 

§   717.  Leases  of  agricultural  land,  for  over  ten  years,  void. 

§  718.  Leases  of  city  lots,  for  over  fifty  years,  void. 

§  715.  How  long  it  may  be  suspended.  The  absolute 
power  of  alienation  cannot  be  suspended,  by  any  limita- 
tion or  condition  whatever,  for  a  longer  period  tnan  during 
the  continuance  of  the  lives  of  persons  in  being  at  the 
creation  of  the  limitation  or  condition,  except  in  the  single 
case  mentioned  in  section  772.     En.  March  21,  1872. 

Cal.Rep.Cit.      58,473;      58,481;  58,482;  73,103;  74,143; 

79,  622;   105,  197;    108,  646;  108,  647;  108,  656;  108.  657: 

108,  658;   109,  330;   118,  657;  118,  658;  119,  146;  121,  382: 

123,  142;    124,  536;    133,  620;  136,  141;  136,  142. 

See  also  post,  sec.  771. 

§  716.  Future  interests  void,  which  suspend  power  of 
alienation.  Every  future  interest  is  void  in  its  creation 
which,  by  any  possibility,  may  suspend  the  absolute  power 
of  alienation  for  a  longer  period  than  is  prescribed  in  this 
chapter.     Such   power   of   alienation   is    suspended   when 


229  MODIFICATIONS    OF    OWNERSHIP.  §§717-724 

there  are  no  persons  in  being  by  whom  an  absolute  interest 
in  possession  can  be  conveyed.     En.  March  21,  18^2. 

Cal.Rep.Cit.      73,  103;      79,  622;   108,  647;    108,  648;   119,  146; 
121,  382;   123,  143;   124,  537;   136,  141;   136,  142. 

§717.  Leases  of  agricultural  land,  for  over  ten  years, 
void.  No  lease  or  grant  of  laud  for  agricultural  purposes 
for  a  longer  period  than  ten  years,  in  which  shall  be  re- 
served any  rent  or  service  of  any  kind,  shall  be  valid.  En. 
March  21,  1872.    Am'd.  1895,  76. 

§  718.     Leases    of    city    lots,    for    over   fifty    years,    void. 

No  lease  or  grant  of  any  town  or  city  lot,  for  a  longer 
period  than  fifty  years,  in  which  shall  be  reserved  any 
rent  or  service  of  any  kind,  shall  be  valid;  provided,  that 
the  property  of  any  municipality,  or  any  minor  or  incom- 
petent person  shall  not  be  leased  for  a  longer  period  than 
ten  years.  En.  March  21,  1872.  Am'd.  1903,  247. 
Cal.Rep.Cit.  136.  142. 


ARTICLE    rV. 

ACCUMULATIONS. 

§  722.  Dispositions  of  income. 

§  723.  Accumulations,  when   void. 

§  724.  Accumulation  of  income. 

§  725.  Other  directions,  when  void  in  part. 

§  726.  Application  of  income  to  support,  etc.,  of  minor. 

§  722.  Dispositions  of  income.  Dispositions  of  the  In- 
come of  property  to  accrue  and  to  be  received  at  any  time 
subsequent  to  the  execution  of  the  instrument  creating 
such  disposition,  are  governed  by  the  rules  prescribed  in 
this  title  in  relation  to  future  interests.  En.  March  21, 
1872.- 

Cal.Rep.Cit.  58,  481;  79.  623, 

§  723.  Accumulations,  when  void.  All  directions  for  the 
accumulation  of  the  income  of  property,  except  such  as  are 
allowed  by  this  title,  are  void.    En.  March  21,  1872. 

Cal.Rep.Cit.   136,  103;.  136,  142. 

§  724.  Accumulation  of  income.  An  accumulation  of 
the  income  of  property,  for  the  benefit  of  one  or  more 
persons,  may  be  directed  by  any  will  or  transfer  in  writing 


§§  725, 726  MODIFICATIONS    OP    OWNERSHIP.  230 

sufficient  to  pass  the  property  out  of  which  the  fund  is  to 
arise,  as»follows: 

1.  If  such  accumulation  is  directed  to  commence  on  the 
creation  of  the  interest  out  of  which  the  income  is  to  arise, 
it  must  be  made  for  the  benefit  of  one  or  more  minors  then 
in  being,  and  terminate  at  the  expiration  of  their  minor- 
ity; or, 

2.  If  such  accumulation  is  directed  to  commence  at  any 
time  subsequent  to  the  creation  of  the  interest  out  of 
which  the  income  is  to  arise,  it  must  commence  within 
the  time  in  this  title  permitted  for  the  vesting  of  future 
interests,  and  during  the  minority  of  the  beneficiaries,  and 
terminate  at  the  expiration  of  such  minority.  En.  March 
21,    1872. 

Cal.Rep.Cit.  58,  4S0 ;   58,  482 ;   79,  623 ;   136,  142. 

Ownership  of  undisposed  accumulations:  See  sec.  733, 
post. 

Accumulations  liable  for  debts:    See  sec.  859. 

Restraint  upon  disposition  of  beneficiary's  interest:  See 
sec.  867. 

Bequests  of  income:    See  post,  sees.  1357,  subd.  3,  1366. 

Annuities:    See  same  sections. 

§  725.  Other  directions,  when  void  in  part.  If  in  either 
of  the  cases  mentioned  in  the  last  section  the  direction  for 
an  accumulation  is  for  a  longer  term  than  during  the  mi- 
nority of  the  beneficiaries,  the  direction  only,  whether 
separable  or  not  from  other  provisions  of  the  instrument, 
is  void  as  respects  the  time  beyond  such  minority.  En. 
March  21,  1872. 

§  726.  Application  of  income  to  support,  etc.,  of  minor. 
When  a  minor  for  whose  benefit  an  accumulation  has  been 
directed  is  destitute  of  other  sufficient  means  of  support 
and  education,  the  proper  court,  upon  application,  may 
direct  a  suitable  sum  to  be  applied  thereto  out  of  the  fund. 
En.  March  21,  1872. 

Cal.Rep.Cit.   58,  481. 

Maintenance  of  ward  out  of  his  estate;  See  Code  Civ. 
Proc,  sees.  1770,  1771. 


231  TERMINATION    OF    OWNERSHIP.  §5  732-740 


CHAPTER    III. 

RIGHTS    OF    OWNERS. 

§  732.     Increase  of  property. 

§  733.     In  certain  cases  who  entitled  to  income  of  property. 

§732.  Increase  of  property.  The  owner  of  a  thing  also 
owns  all  its  products  and  accessions.    En.  March  21,  1872. 

Accessions  to  real  property:    See  post,  sees,  1013  et  seq. 

Accessions  to  personal  property:  See  post,  sees.  1025  et 
seq. 

§  733.  In  certain  cases  who  entitled  to  income  of  prop- 
erty. When,  in  consequence  of  a  valid  limitation  of  a 
future  interest,  there  is  a  suspension  of  the  power  of  aliena- 
tion or  of  the  ownership  during  the  continuation  of  which 
the  income  is  undisposed  of,  and  no  valid  direction  for  its 
accumulation  is  given,  such  income  belongs  to  the  persons 
presumptively  entitled  to  the  next  eventual  interest.  En. 
March  21,  1872. 


CHAPTER    IV. 

TERMINATION  OF  OWNERSHIP. 

§  739.  Future  interests,  when  defeated. 

§  740.  Same. 

§  741.  Future  interests,  when  not  defeated. 

§  742.  Same. 

§739.  Future  interests,  when  defeated.  A  future  inter- 
est, depending  on  the  contingency  of  the  death  of  any 
person  without  successors,  heirs,  issue,  or  children,  is  de- 
feated by  the  birth  of  a  posthumous  child  of  such  person, 
capable  of  taking  by  succession.    En.  March  21,  1872. 

Posthumous  children:    See  ante,  sec.  698. 

§  740.  Same.  A  future  interest  may  be  defeated  in  any 
manner  or  by  any  act  or  means  which  the  party  creating 
such  interest  provided  for  or  authorized  in  the  creation 
thereof;  nor  is  a  future  interest,  thus  liable  to  be  defeated, 
to  be  on  that  ground  adjudged  void  in  its  creation.  En. 
March  21,  1872. 


fS  741-749  GENERAL    DEFINITIONS.  232 

§741.  Future  interests,  when  not  defeated.  No  future 
interest  can  be  defeated  or  barred  by  any  alienation  or 
other  act  of  the  owner  of  the  intermediate  or  precedent 
interest,  nor  by  any  destruction  of  such  precedent  interest 
by  forfeiture,  surrender,  merger,  or  otherwise,  except  as 
provided  by  the  next  section,  or  where  a  forfeiture  is  im- 
posed by  statute  as  a  penalty  for  the  violation  thereof.  En. 
March  21,  1872. 

Future  interests:    See  post,  sec.  767. 

§  742.  Same.  No  future  interest,  valid  in  its  creation, 
is  defeated  by  the  determination  of  the  precedent  interest 
before  the  happening  of  the  contingency  o'a  which  the  fu- 
ture interest  is  limited  to  take  effect;  but  should  such  con- 
tingency afterwards  happen,  the  future  interest  takes  effect 
in  the  same  manner,  and  to  the  same  extent,  as  if  the  pre- 
cedent interest  had  continued  to  the  same  period.  En. 
March  21,  1872. 


TITLE    III. 

GENERAL    DEFINITIONS. 

§  748.     Income,  what. 

§  749.     Time  of  creation,   what. 

§  748.  Income,  what.  The  income  of  property,  as  the 
term  is  used  in  this  part  of  the  code,  includes  the  rents  and 
profits  of  real  property,  the  interest  of  money,  dividends 
upon  stock,  and  other  produce  of  personal  property.  En. 
March  21,  1872. 

§  749.  Time  of  creation,  what.  The  delivery  of  the 
grant,  where  a  limitation,  condition,  or  future  interest  is 
created  by  grant,  and  the  death  of  the  testator,  where  it 
is  created  by  will,  is  to  be  deemed  the  time  of  the  creation 
of  the  limitation,  condition,  or  interest,  within  the  mean- 
ing of  this  part  of  the  code.    En.  March  21,  1872. 

Gal.Rep.Cit.  79,  622;  108,  647;  123,  142;  124,  537. 


PART  II. 


REAL  OR  IMMOVABLE  PROPERTY. 

Title  I.  General  Provisions,  §  755. 

II.  Estates  in  Real  Property,  §§761-811. 

III.  Rights  and  Obligations  of  Owners,  §§  818-841. 

IV.  Uses  and  Trusts,  §§  847-871. 

V.    Powers,  §§  878-940.    [Repealed.] 


TITLE    I. 

GENERAL    PROVISIONS. 
§  755.    Real  property,  how  governed. 

§  755.  Real  property,  how  governed.  Real  property 
within  this  state  is  governed  by  the  law  of  this  state,  ex- 
cept where  the  title  is  in  the  United  States.  En.  March 
21,  1872.    Am'd.  1873-4,  218. 

Cal.Rep.Cit.  85,   282. 

Territorial  jurisdiction  of  the  state:  See  Pol.  Code, 
sees.  33,  34. 

TITLE    II. 

ESTATES  IN  REAL  PROPERTY. 

Chapter  I.    Estates  in  General,  §§761-781. 

.     II.    Termination  of  Estates,  §§  789-793. 
III.    Servitudes,  §§801-811. 

CHAPTER    I. 
ESTATES    IN    GENERAL. 

5  761.  Enumeration  of  estates. 

§  762.  "What  estate  a  fee  simple. 

§  763.  Conditional  fees  and  estates  tall  abolished. 

§  764.  Certain  remainders  valid. 

§  765.  Freeholds.      Chattels   real.      Chattel   interests. 

S  766.  Estates  for  life  of  a  third  person,  when  a  freehold,  etc. 


55  7G1-765  ESTATES    IN    GENERAL.  234 

§  767.  Future  estates,  limitations  of. 

§   768.  Reversions. 

§  769.  Remainders. 

§  770.  Suspended   ownership. 

§  771.  Suspension  by  trust. 

§  772.  Contingent  remainder  In  fee. 

§  773.  Remainders,    future   and   contingent  estates*  how  created. 

§  774.  Limitation  of  successive  estates  for  life. 

§   775.  Remainders. 

§  776.  Contingent  remainder  on   a  term  of  years. 

§  777.  Remainder  of  estates  for  life. 

§  778.  Remainder  upon  a  contingency. 

§  779.  Heirs  of  a  tenant  for  life,  when  to  take  as  purchasers. 

§  780.  Construction  of  certain   remainders. 

§  781.  Effect  of  power  of  appointment. 

§  761.  Enumeration  of  estates.  Estates  in  real  property, 
in  respect  to  the  duration  of  their  enjoyment,  are  either: 

1.  Estates  of  inheritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will.    En.  March  21,  1872 

Cal.Rep.Cit.   79,   443. 

See  sec.  765. 

§  762.  What  estate  a  fee  simple.  Every  estate  of  inheri- 
tance is  a  fee,  and  every  such  estate,  when  not  defeasible 
or  conditional,  is  a  fee  simple,  or  an  absolute  fee.  En. 
March  21,  1872.    Am'd.  1873-4,  218. 

Transferring  fee,  words  of  inheritance  not  essential: 
See  sec.  1072,  post. 

Devising  fee,  "heirs"  not  essential:    Sec.  1329. 

§  763.  Conditional  fees  and  estates  tail  abolished.  Es- 
tates tail  are  abolished,  and  every  estate  which  would  be 
at  common  law  adjudged  to  be  a  fee  tail  is  a  fee  simple; 
and  if  no  valid  remainder  is  limited  thereon,  is  a  fee  simple 
absolute.    En.  March  21,  1872. 

Cal.Rep.Cit.  104,   302. 

§764.  Certain  remainders  valid.  Where  a  remainder 
in  fee  is  limited  upon  any  estate,  which  would  by  the  com- 
mon law  be  adjudged  a  fee  tail,  such  remainder  Is  valid  as 
a  contingent  limitation  upon  a  fee,  and  vests  in  possession 
on  the  death  of  the  first  taker,  without  issue  living  at  the 
time  of  his  death.    En.  March  21,  1872. 

§  765.  Freeholds.  Chattels  real.  Chattel  interests.  Es- 
tates of  inheritance  and  for  life  are  called  estates  ot  free- 


235  ESTATES    IN    GENERAL.  §§  766-771 

hold;  estates  for  years  are  chattels  real;  and  estates  at  will 
are  chattel  interests,  but  are  not  liable  as  such  to  sale  on 
execution.    En.  March  21,  1872. 

Cal.Rep.Cit.  113,   353. 

§  766.  Estates  for  life  of  a  third  person,  when  a  freehold, 
etc.  An  estate,  during  the  life  of  a  third  person,  whether 
limited  to  heirs  or  otherwise,  is  a  freehold.  En.  March 
21,  1872.    Am'd.  1873-4,  218. 

§767.  Future  estates,  limitations  of.  A  future  estate 
may  be  limited  by  the  act  of  the  party  to  commence  in 
possession  at  a  future  day,  either  without  the  intervention 
of  a  precedent  estate,  or  on  the  termination,  by  lapse  of 
time  or  otherwise,  of  a  precedent  estate  created  at  the 
same  time.    En.  March  21,  1872. 

Cal.Rep.Cit.  49,  374;   98,  451;   136,  141. 

Future  interests:    See  post,  sec.  739  et  seq. 

§  768.  Reversions.  A  reversion  is  the  residue  of  an  es- 
tate left  by  operation  of  law  in  the  grantor  or  his  succes- 
sors, or  in  the  successors  of  a  testator,  commencing  in 
possession  on  the  determination  of  a  particular  estate 
granted  or  devised.    En.  March  21,  1872. 

Cal.Rep.Cit.  134,  322. 

§  769.  Remainders.  When  a  future  estate,  other  than  a 
reversion,  is  dependent  on  a  precedent  estate,  it  may  be 
called  a  remainder,  and  may  be  created  and  transferred  by 
that  name.    En.  March  21,  1872. 

Cal.Rep.Cit.  120,  84. 

§770.  Suspended  ownership.  The  absolute  ownership 
of  a  term  of  years  cannot  be  suspended  for  a  longer  period 
than  the  absolute  power  of  alienation  can  be  suspended 
in  respect  to  a  fee.    En.  March  21,  1872.    Am'd.  1873-4,  218. 

§  771.  Suspension  by  trust.  The  suspension  of  all  power 
to  alienate  the  subject  of  a  trust,  other  than  a  power  to 
exchange  it  for  other  property  to  be  held  upon  the  same 
trust,  or  to  sell  it  and  reinvest  the  proceeds  to  be  held 
upon  the  same  trust,  is  a  suspension  of  the  power  of  alien- 
ation, within  the  meaning  of  section  715.  En.  March  21, 
1872. 

Cal.Rep.Cit.     58,  481;   108,  647;   108,  648;   108,  656;   121,  382; 
124,  537. 


§§772-'?76  ESTATES    IN    GENERAL.  236 

§  772.  Contingent  remainder  in  fee.  A  contingent  re- 
mainder in  fee  may  be  created  on  a  prior  remainder  in 
fee,  to  take  effect  in  the  event  that  the  persons  ^o  whom 
the  first  remainder  is  limited  die  under  the  age  of  twenty- 
one  years,  or  upon  any  other  contingency  by  which  the 
estate  of  such  persons  may  be  determined  before  they  at- 
tain majority.    En.  March  21,  1872. 

Cal.Rep.Cit.     58,  474;     58,  476;     58,  480;   79,   622;   119,  146; 
124,  537;   128,       9. 

§  773.  Remainders,  future  and  contingent  estates,  how 
created.  Subject  to  the  rules  of  this  title,  and  of  part  I  of 
this  division,  a  freehold  estate,  as  well  as  a  chattel  real, 
may  be  created  to  commence  at  a  future  day;  an  estate  for 
life  may  be  created  in  a  term  of  years,  and  a  remainder 
limited  thereon;  a  remainder  of  a  freehold  or  chattel  real, 
either  contingent  or  vested,  may  be  created,  expectant  on 
the  determination  of  a  term  of  years;  and  a  fee  may  be 
limited  on  a  fee  upon  a  contingency,  which,  if  it  should 
occur,  must  happen  within  the  period  prescribed  in  this 
title.     En.  March  21,  1872. 

Cal.Rep.Cit.  120,  84;   128,  9;   136,  141. 

§  774.  Limitation  of  successive  estates  for  life.  Suc- 
cessive estates  for  life  cannot  be  limited,  except  to  per- 
sons in  being  at  the  creation  thereof,  and  all  life  estates 
subsequent  to  those  of  persons  in  being  are  void;  and 
upon  the  death  of  those  persons  the  remainder,  if  valid  in 
its  creation,  takes  effect  in  the  same  manner  as  if  no  other 
life  estate  had  been  created.  En.  March  21,  1872.  Am'd. 
1873-4,  219. 

§  775.  Remainders.  No  remainder  can  be  created  upon 
successive  estates  for  life,  provided  for  in  the  preceding 
section,  unless  such  remainder  is  in  fee;  nor  can  a  re- 
mainder be  created  upon  such  estate  in  a  term  for  years, 
unless  it  is  for  the  whole  residue  of  such  term.  En.  March. 
21,  1872.     Am'd.  1873-4,  219. 

§  776.  Contingent  remainder  on  a  term  of  years.  A  con- 
tingent remainder  cannot  be  created  on  a  term  of  years,  un- 
less the  nature  of  the  contingency  on  which  it  is  limited 
is  such  that  the  remainder  must  vest  in  interest  during  the 


237  ESTATES    IN    GENERAL.  §§  777-781 

continuance  or  at  the  termination  of  lives  in  being  at  the 
creation  of  such  remainder.    En.  March  21,  1872. 
Cal.Rep.Cit.  136,  141. 

§777.  Remainder  of  estates  for  life.  No  estate  for  life 
can  be  limited  as  a  remainder  on  a  term  of  years,  except 
to  a  person  in  being  at  the  creation  of  such  estate.  En. 
March  21,  1872. 

§  778.  Remainder  upon  a  contingency.  A  remainder 
may  be  limited  on  a  contingency  which,  in  case  it  should 
happen,  will  operate  to  abridge  or  determine  the  precedent 
estate;  and  every  such  remainder  is  to  be  deemed  a  con- 
ditional limitation.     En.  March  21,  1872. 

Cal.Rep.Cit.  120,  84. 

See  sec.  780,  infra. 

§779.  Heirs  of  a  tenant  for  life,  when  to  take  as  pur- 
chasers. When  a  remainder,  is  limited  to  the  heirs,  or 
heirs  of  the  body,  of  a  person  to  whom  a  life  estate  in  the 
same  property  is  given,  the  persons  who,  on  the  termina- 
tion of  the  life  estate,  are  the  successors  or  heirs  of  the 
body  of  the  owner  for  life,  are  entitled  to  take  by  virtue  of 
the  remainder  so  limited  to  them,  and  not  as  mere  succes- 
sors of  the  owner  for  life.    En.  March  21,  1872. 

Cal.Rep.Cit.  70,  559  ;   104,  299  ;   104,  301. 

§780.  Construction  of  certain  remainders.  When  a  re- 
mainder on  an  estate  for  life  or  for  years  is  not  limited  on 
a  contingency  defeating  or  avoiding  such  precedent  estate, 
it  is  to  be  deemed  intended  to  take  effect  only  on  the  death 
of  the  first  taker,  or  the  expiration,  by  lapse  of  time,  of 
such  term  of  years.    En.  March  21,  1872. 

§  781.  Effect  of  power  of  appointment.  A  general  or 
special  power  of  appointment  does  not  prevent  the  vesting 
of  a  future  estate  limited  to  take  effect  in  case  such  power 
is  not  executed.    En.  March  21,  1872. 

Cal.Rep.Cit.  132,  558. 


S5  789-793  TERMINATION    OF    ESTATES.  238 

CHAPTER    II. 

TERMINATION    OF    ESTATES. 

8  789.  Tenancy  at  will  may  be  terminated  by  notice. 

S  790.  Effect  of  notice. 

S  791.  Re-entry,  when  and  how  to  be  made. 

§  792.  Summary  proceedings   in   certain   cases  provided  for. 

i  793.  Notice  not  necessary  before  action. 

§  789.  Tenancy  at  will  may  be  terminated  by  notice.  A 
tenancy  or  other  estate  at  will,  however  created,  may  be 
terminated  by  the  landlord's  giving  notice  in  writing  to  the 
tenant,  in  the  manner  prescribed  by  section  1162  of  the 
Code  of  Civil  Procedure,  to  remove  from  the  premises 
within  a  period  of  not  less  than  one  month  to  be  specified 
in  the  notice.    En.  March  21,  1872. 

Cal.Rep.Cit.      56,129;      66,447;      67,471;      69,  320 ;   101,  428 ; 
105,     19;   113,     19;   113,  540. 

Changing  terms  of  tenancy:    See  sec.  827,  post. 

§  790.     Effect   of    notice.     After    such    notice    has    been 
served,   and  the  period   specified  by  such  notice  has   ex- 
•  pired,  but  not  before,  the  landlord  may  re-enter,  or  pro- 
ceed according  to  law  to  recover  possession.     En.  March 
21,  1872. 

Cal.Rep.Cit.  66,  447. 

§791.  Re-entry,  when  and  how  to  be  made.  Whenever 
the  right  of  re-entry  is  given  to  a  grantor  or  lessor  in  any 
grant  or  lease,  or  otherwise,  such  re-entry  may  be  made 
at  any  time  after  the  right  has  accrued  upon  three  days' 
notice,  as  provided  in  sections  1161  and  1162,  Code  of  Civil 
Procedure.     En.  March  21,  1872. 

Cal.Rep.Cit.  56,  129;   56,  130;   63,  52;   6G,  447;  138,  79.    • 

§792.  Summary  proceedings  in  certain  cases  provided 
for.  Summary  proceedings  for  obtaining  possession  of  real 
property  forcibly  entered,  or  forcibly  and  unlawfully  de- 
tained, are  provided  for  in  sections  1159  to  1175,  both  in- 
clusive, of  the  Code  of  Civil  Procedure.  En.  March  21, 
1872. 

§  793.  Notice  not  necessary  before  action.  An  action 
for  the  possession  of  real  property  leased  or  granted,  with 


239  SEKViTUDES.  §801 

a  right  of  re-entry,  may  be  maintained  at  any  time,  in  the 
district  court,  after  the  right  to  re-enter  has  accrued,  with- 
out the  notice  prescribed  in  section  791.  En.  March  Zl, 
1872. 

Cal.Rep.Cit.  88,  425. 


CHAPTER    III. 

SERVITUDES. 

5  801.  Servitudes   attached   to    land. 

§  802.  Servitudes  not  attached  to  land. 

§   803.  Designation  of  estates. 

§   804.  By   whom   grantable. 

§   805.  By  whom  held. 

§  806.  Extent  of  servitudes. 

§   807.  Apportioning  easements. 

§   808.  Rights  of  owner  of  future  estate. 

§  809.  Actions  by  owner  and  occupant  of  dominant  tenement. 

§  810.  Actions  by  owner  of  servient  tenement. 

§   811.  How  extinguished. 

§  801.  Servitudes  attached  to  land.  Th©  following  land 
burdens,  or  servitudes  upon  land,  may  be  attached  to  other 
land  as  incidents  or  appurtenances,  and  are  then  called 
easements: 

1.  The  right  of  pasture; 

2.  The  right  of  fishing; 

3.  The  right  of  taking  game; 

4.  The  right  of  way; 

5.  The  right  of  taking  water,  wood,  minerals,  and  other 
things; 

6.  The  right  of  transacting  business  upon  land; 

7.  The  right  of  conducting  lawful  sports  upon  land; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or 
over,  or  discharging  the  same  upon  or  over  land; 

9.  The  right  of  receiving  water  from  or  discharging  the 
same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The  right  of  having  water  flow  without  diminution  or 
disturbance  of  any  kind; 

12.  The  right    of  using  a  wall  as  a  party  wall; 

13.  The  right  of  receiving  more  than  natural  support 
from  adjacent  land  or  things  affixed  thereto; 

14.  The  right  of  having  the  whole  of  a  division  fence 
maintained  by  a  coterminous  owner; 


S§  802-806  SERVITUDES.  240 

15.  The  right  of  having  public  conveyances  stopped,  or 
of  stopping  the  same  on  land; 

16.  The  right  of     a  seat  in  church; 

17.  The  right  of  burial.     En.  March  21,  1872. 

Cal.Kep.Cit.     56,     13;      69,293;      83,517;      83,518;      90,286; 
91,     84;   120,  493;   136.     48.       Subd.   4—132.  236.    Subd.   8— 
120,  490. 

Coterminous  owners,  rights,  and  duties:    See  post,  seca. 
832,  841. 
Easements  passing  with  property:    See  post,  sec.  1104. 
Flow  of  water:    See  ante,  sec.  552. 

§  8C2.  Servitudes  not  attached  to  land.  The  following 
land  burdens  or  servitudes  upon  land,  may  be  granted  and 
held,  though  not  attached  to  land: 

1.  The  right  to  pasture,  and  of  fishing  and  taking  game. 

2.  The  right  of  a  seat  in  church. 

3.  The  right  of  burial. 

4.  The  right  of  taking  rents  and  tolls. 

5.  The  right  of  way. 

6.  The  right  of  taking  water,  wood,  minerals,  or  other 

things.    En.  March  21,  1872.     Am'd.  1873-4,  219. 

Cal.Rep.Cit.      65,     48;      69,323;      91,     84;      99,212;    109,     37. 
Subd.   5—110.  585. 

§  803.  Designation  of  estates.  The  land  to  which  an 
easement  is  attached  is  called  the  dominant  tenement;  the 
land  upon  which  a  burden  or  servitude  is  laid  is  called  the 
servient  tenement.    En.  March  21,  1872. 

§804.  By  whom  grantable.  A  servitude  can  be  created 
only  by  one  who  has  a  vested  estate  in  the  servient  tene- 
ment.   En.  March  21,  1872. 

§  805.  By  whom  held.  A  servitude  thereon  cannot  be 
held  by  the  owner  of  the  servient  tenement.  En.  March 
21,  1872. 

Cal.Rep.Cit.  110,   585. 

Servitude  extinguished  by  merger  of  estates:  See  post, 
sec.  811. 

§  806.  Extent  of  servitudes.  The  extent  of  a  servitude 
is  determined  by  the  terms  of  the  grant,  or  the  nature  of 
the  enjoyment  by  which  if  was  acquired.  En.  March  21, 
1872. 

Cal.Rep.Cit.   65,  48;   81,  125;    92,  141;   108.  596. 


241  SERVITUDES.  §§  807-811 

§  807.  Apportioning  easements.  In  case  of  partition  of 
the  dominant  tenement,  the  burden  must  be  apportioned 
according  to  the  division  of  the  dominant  tenement,  but 
not  in  such  a  way  as  to  increase  the  burden  upon  the  ser- 
vient tenement.    En.  March  21,  1872. 

§  808.  Rights  of  owner  of  future  estate.  The  owner 
of  a  future  estate  in  a  dominant  tenement  may  use  ease- 
ments attached  thereto  for  the  purpose  of  viewing  waste, 
demanding  rent,  or  removing  an  obstruction  to  the  enjoy- 
ment of  such  easements,  although  such  tenement  is  occu- 
pied by  a  tenant.    En.  March  21,  1872. 

§  809.  Actions  by  owner  and  occupant  of  dominant  tene- 
ment. The  owner  of  any  estate  in  a  dominant  tenement, 
or  the  occupant  of  such  tenement,  may  maintain  an  action 
for  the  enforcement  of  an  easement  attached  thereto.  En. 
March  21,  1872. 

§  810.  Actions  by  owner  of  servient  tenement.  The 
owner  in  fee  of  a  servient  tenement  may  maintain  an 
action  for  the  possession  of  the  land,  against  any  one  un- 
lawfully possessed  thereof,  though  a  servitude  exists 
thereon  in  favor  of  the  public.    En.  March  21,  1872. 

Cal.Rep.Cit.   69,   221. 

§811.     How  extinguished.     A  servitude  is  extinguished: 

1.  By  the  vesting  of  the  right  to  the  servitude  and  the 
right  to  the  servient  tenement  in  the  same  person; 

2.  By  the  destruction  of  the  servient  tenement; 

3.  By  the  performance  of  any  act  upon  either  tenement, 
by  the  owner  of  the  servitude,  or  with  his  assent,  which 
is  incompatible  with  its  nature  or  exercise;  or, 

4.  When  the  servitude  was  acquired  by  enjoyment,  by 

disuse  thereof  by  the  owner  of  the  servitude  for  the  period 

prescribed  for  acquiring  title  by  enjoyment.     En.  March 

21,  1872. 

Cal.Rep.Cit.      69,  292;      69,  294;   110,  585;    125,  425.    Subd.   4— 
93,  213;   110,  126. 

Extinguishment  of  servitude. — Subd.  1.  Vesting  of  right 
to  servitude  and  right  to  servient  tenement  in  same  per- 
son:   See  sec.  805,  ante. 


Civ.  Code— 11 


55  818-820  RIGHTS    OF    OWNERS.  242 

TITLE    III. 

RIGHTS  AND  OBLIGATIONS  OF  OWNERS. 

Chapter  I.     Rights  of  Owners,  S§  818-834. 

11.     Obligations  of  Owners,  §§  840-841. 

CHAPTER    I. 

RIGHTS    OP    OWNERS. 

Article   I.      Incidents   of  Ownership,   §§  818-S27. 
II.      Boundaries,   §§  S29-S34. 

ARTICLE    I. 

INCIDENTS    OF    OWNERSHIP.      . 

§  818.  Rights  of  tenant  for  life. 

I  819.  Rights  of  tenant  for  years,  etc. 

§  820.  Same. 

§  821.  Rights  of  grantees  of  rents  and  reversions. 

§  822.  Assigns  of  lessee,  remedies  against. 

§  823.  Rights  of  lessees  and  their  assignees,  etc. 

§  824.  Remedy  on   leases  for  life. 

§  825.  Rent  dependent  on  life. 

§  826.  Remedy  of  reversioners,   etc. 

I  827.  Terms  of  lease  may  be  changed  by  notice. 

§818.  Rights  of  tenant  for  life.  The  owner  of  a 'life 
estate  may  use  the  land  in  the  same  manner  as  the  owner 
of  a  fee  simple,  except  that  he  must  do  no  act  to  the  in- 
jury of  the  inheritance.    En.  March  21,  1872. 

Duties  of  tenants  for  life:    See  sec.  840,  post. 

§  819.  Rights  of  tenant  for  years,  etc.  A  tenant  for 
years  or  at  will,  unless  he  is  a  wrongdoer  by  holding  over, 
may  occupy  the  buildings,  take  the  annual  products  of  the 
soil,  work  mines  and  quarries  open  at  the  commencement 
of  his  tenancy.    En.  March  21,  1872. 

Cal.Rep.Cit.  101,  428;   115,  625. 

§  820.  Same.  A  tenant  for  years  or  at  will  has  no  other 
rights  to  the  property  than  such  as  are  given  to  him  by 
the  agreement  or  instrument  by  which  his  tenancy  is  ac- 
quired, or  by  the  last  section.    En.  March  21,  1872. 

Cal.Rep.Cit.  86.  339. 


I 

243  RIGHTS     OF     OWNERS.  §§  821-826 

§821.  Rights  of  grantees  of  rents  and  reversions.  A 
person  to  whom  any  real  property  is  transferred  or  de- 
vised, upon  which  rent  has  been  reserved,  or  to  whom  any 
such  rent  is  transferred,  is  entitled  to  the  same  remedies 
for  recovery  of  rent,  for  nonperformance  of  any  of  the 
terms  of  the  lease,  or  for  any  waste  or  cause  of  forfeiture, 
as  his  grantor  or  devisor  might  have  had.  En.  March  21, 
1872. 

Cal.Rep.Cit.   79.  443. 

Grants  of  rent  are  not  binding  upon  the  tenant  until  he 
has  notice  thereof:    Sec.  1111,  post. 

Hiring  of  real  property  generally:    See  sees.  1941  et  seq. 

§822.  Assigns  of  lessee,  remedies  against.  Whatever 
remedies  the  lessor  of  any  real  property  [has]  against  his 
immediate  lessee  for  the  breach  of  any  agreement  in  the 
lease,  or  for  recovery  of  the  possession,  he  has  against  the 
assignees  of  the  lessee,  for  any  cause  of  action  accruing 
while  they  are  such  assignees,  except  where  the  assign- 
ment is  made  by  way  of  security  for  a  loan,  and  is  not 
accompanied  by  possession  of  the  premises.  En.  March 
21,  1872.     Am'd.  1873-4,  219. 

Cal.Rep.Cit.   63,   370. 

§  823.  Rights  of  lessees  and  their  assignees,  etc. 
Whatever  remedies  the  lessee  of  any  real  property  may 
have  against  his  immediate  lessor,  for  the  breach  of  any 
agreement  in  the  lease,  he  may  have  against  the  assigns  of 
the  lessor,  and  the  assigns  of  the  lessee  may  have  against 
the  lessor  and  his  assigns,  except  upon  covenants  against 
incumbrances  or  relating  to  the  title  or  possession  of  the 
premises.     En.  March  21,  1872. 

Cal.Rep.Cit.   66,   421. 

§  824.  Remedy  on  leases  for  life.  Rent  due  upon  a  lease 
for  life  may  be  recovered  in  the  same  manner  as  upon  a 
lease  for  years.    En.  March  21,  1872. 

1 825.  Rent  dependent  on  life.  Rent  depeijdent  on 
the  life  of  a  person  may  be  recovered  after  as  well  as  be- 
fore his  death.    En.  March  21,  1872. 

§  826.  Remedy  of  reversioners,  etc.  A  person  having 
an  estate  in  fee,  in  remainder  or  reversion,  may  main- 
tain an  action  for  any  injury  done  to  the  inheritance,  not- 


8§  827-830  RIGHTS    OF    OWNERS.  244 

withstanding  an  intervening  estate  for  life  or  years,  and 
although,  after  its  commission,  his  estate  is  transferred, 
and  he  has  no  interest  in  the  property  at  the  commence- 
ment of  the  action.    En.  March  21,  1872. 

Cal.Rep.Cit.   75,   121. 

§  827.  Terms  of  lease  may  be  changed  by  notice.  In 
all  leases  of  lands  or  tenements,  or  of  any  interest  therein, 
from  month  to  month,  the  landlord  may,  upon  giving  notice 
in  writing  at  least  fifteen  days  before  the  expiration  of  the 
month,  change  the  terms  of  the  lease  to  take  effect  at  the 
expiration  of  the  month.  The  notice,  when  served  upon 
the  tenant,  shall  of  itself  operate  and  be  effectual  to  create 
and  establish,  as  a  part  of  the  lease,  the  terms,  rent,  and 
conditions  specified  in  the  notice,  if  the  tenant  shall  con- 
tinue to  hold  the  premises  after  the  expiration  of  the 
month.     En.  Stats.  1873-4,  220. 

Cal.Rep.Cit.   86,  439  ;   105,  19. 

Termination  of  tenancy  at  will:    See  sec.  789,  ante. 

ARTICLE    II. 

BOUNDARIES. 

§  829.  Rights  of  owner. 

§   830.  Boundaries  by  water. 

§  831.  Boundaries  by  ways. 

§  832.  Lateral  and  subjacent  support. 

§  833.  Trees  whose  trunks  are  wholly  on  land  of  one. 

§  834.  Line  trees. 

§  829.  Rights  of  owner.  The  owner  of  land  in  fee  has 
the  right  to  the  surface  and  to  everything  permanently 
situated  beneath  or  above  it.    En.  March  21,  1872. 

§  830.  Boundaries  by  water.  Except  where  the  grant 
under  which  the  land  is  held  indicates  a  different  intent, 
the  owner  of  the  upland,  when  it  borders  on  tide-water, 
takes  to  ordinary  high-water  mark;  when  it  borders  upon  a 
navigable  lake  or  stream,  where  there  is  no  tide,  the 
owner  takes  to  the  edge  of  the  lake  or  stream,  at  low- 
water  mark;  when  it  borders  upon  any  other  water,  the 
owner  takes  to  the  middle  of  the  lake  or  stream.  En. 
March  21,  1872.     Am'd.  1873-4,  220. 

Cal.Rep.Cit.   69,  127;    99,  308;   138,  425. 

Navigable  waters  boundaries. — Navigable  waters  enu- 
merated:   See  Pol.  Code,  sees.  2348,  2349,  2351. 


245  OBLIGATIONS     OF     OWNERS.  §5  831-840 

§831.  Boundaries  by  ways.  An  owner  of  land  bounded 
by  a  road  or  street  is  presumed  to  own  to  the  center  of 
the  way,  but  the  contrary  may  be  shown.  En.  March  21, 
1872. 

Cal.Rep.Cit.  69,  206 ;   70,  540 ;   95,  665  ;   131,  99. 

Highway  as  boundary:    See  post,  sec.  1112. 

§  832.  Lateral  and  subjacent  support.  Each  coterml' 
nous  owner  is  entitled  to  the  lateral  and  subjacent  supi 
port  which  his  land  receives  from  the  adjoining  land,  sub- 
ject to  the  right  of  the  owner  of  the  adjoining  land  to 
make  proper  and  usual  excavations  on  the  same  for  pur- 
poses of  construction,  on  using  ordinary  care  and  skill,  and 
taking  reasonable  precautions  to  sustain  the  land  of  the 
other,  and  giving  previous  reasonable  notice  to  the  other 
of  his  intention  to  make  such  excavations.  En.  March  21, 
1872.     Atn'd.  1873-4,  221. 

Cal.Rep.Cit.     63,271;     63,272;     63,273;     63,274;     63,276; 
92,     98;     92,603;     95,499;     98,348;     98,349;   105,     57; 
128,  503. 

§833.  Trees  whose  trunks  are  wholly  on  land  of  one. 
Trees  whose  trunks  stand  wholly  upon  the  land  of  one 
owner  belong  exclusively  to  him,  although  their  roots  grow 
into  the  land  of  another.    En.  March  21,  1872. 

§  834.  Line  trees.  Trees  whose  trunks  stand  partly  on 
the  land  of  two  or  more  coterminous  owners  Delong  to 
them  in  common.    En.  March  21,  1872. 


CHAPTER    n. 

OBLIGATIONS    OF    OWNERS. 

S  840.     Duties  of  tenant  for  life. 
§  841.     Monuments  and  fences. 

§840.  Duties  of  tenant  for  life.  The  owner  of  a  life 
estate  must  keep  the  buildings  and  fences  in  repair  from 
ordinary  waste,  and  must  pay  the  taxes  and  other  annual 
charges,  and  a  just  proportion  of  extraordinary  assess- 
ments benefiting  the  whole  inheritance.  En.  March  21, 
1872. 

Cal.Rep.Cit.  136,   518. 


§5  S41,  847  USES    AND    TRUSTS.  246 

Rights  of  tenants  for  life:    See  sec.  818,  ante. 
Decree  declaring  life  estate  terminated:    Code  Civ.  Proc, 
sec.  1723. 

§  841,     Monuments  and  fences.    Coterminous  owners  are 
mutually  bound  equally  to  maintain: 

1.  The  boundaries  and  monuments  between  them; 

2.  The  fences  between  them,  unless  one  of  them  chooses 

to  let  his  land  lie  without  fencing;   in  which  case,  if  he 

afterwards  incloses  it,  he  must  refund  to  the  other  a  just 

proportion  of  the  value  at  that  time,  of  any  division  fence 

made  by  the  latter.    En.  March  21,  1872. 

Cal.Rep.Cit.     51,  297;     67,  593;   103,     45;   103,  117.    Subd.  2— 
119,  527. 


TITLE    IV. 

USES    AND    TRUSTS. 

§  847.  What  uses  and  trusts  may  exist. 

§  846.  Right  to  possession  of  land  creates  legal  ownership.  (Re- 
pealed.) 

§   849.  Certain   trusts  unaffected.      (Repealed.) 

§  850.  Trustees  of  estate  for  use  of  another  take  no  interest.'  (Re- 
pealed.) 

§   851.  Preceding  sections  qualified.      (Repealed.) 

§   852.  Trust  must  be  in  writing. 

§   853.  Transfer  to  one  for  money  paid  by  another, 

§   854.  Rights  of  creditors.      (Repealed.) 

§   855.  Section  853  qualified.      (Repealed.) 

§   856.  Purchasers  protected. 

§  857.  For  what  purposes  express  trusts  may  be  created, 

§   858.  Vesting  of  mortgage  powers. 

§  859.  Profits  of  land  liable  to  creditors  in  certain  cases. 

§   860.  Exercise  of  vested  powers. 

§  861.  Creation  of  certain  powers  not  prohibited.      (Repealed.) 

§   862.  And  land,  etc.,  to  descend  to  persons  entitled.      (Repealed.) 

§   863.  Trustees  of  express  trusts  to  have  whole  estate. 

§   864.  Author  of  trust  may  devise,   etc. 

§   865.  Title  of  grantee  or  devisee  of  trust  property. 

§   866.  Interests  remaining  in  grantor  of  express  trust. 

§   867.  Restraining  disposition  of  trusts. 

§   868.  Same.     (Repealed.) 

§   869.  Eftect  of  omitting  trust  in  conveyance. 

§  870.  Certain  sales,  etc.,  by  trustees,  void. 

§  871.  When  estate  of  trustee  to  cease. 

§  847,  What  uses  and  trusts  may  exist.  Uses  and  trusts 
in  relation  to  real  property  are  those  only  which  are  speci- 
fied in  this-  title.     En.  March  21,  1872. 

Cal.Rep.Cit.      58,  478;      58,  481;      80.  242;   107,  595;   116,  409; 
124,  421;   132,  527;   132,  551;   132,  557. 


247  USES    AND    TRUSTS.  S§  848-854 

Rules  as  to  suspending  power  of  alienation:     Sees.  715, 
716,  771,  ante. 
Trusts  for  accumulation  of  income:    Sees.  722-726,  ante. 
Trusts  in  general:     Sees.  2215-2224,  post. 
Trusts  for  third  persons:    Sees.  2250-2289,  post. 

§848.     Right  to  possession  of  land  creates  legal  owner- 
ship.    (Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  221. 
Cal.Rep.Cit.  132,   535. 

§849.     Certain  trusts  unaffected.    (Repealed.)    En.  March 
21,*  1872.      Rep.  1873-4,   221. 
Cal.Rep.Cit.   132,   535. 

§  850.     Trustees  of  estate  for  use  of  another  take  no  in- 
terest.    (Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  221. 

Cal.Rep.Cit.   132,   535. 

§851.     Preceding    sections    qualified.      (Repealed.)      En. 
March  21,  1872.     Rep.  1873-4,  221. 
Cal.Rep.Cit.   132,   535. 

§  852.     Trust  must  be  in  writing.     No  trust  in  relation 
to  real  property  is  valid  unless  created  or  declared: 

1.  By  a  written  instrument,  subscribed  by  the  trustee,  or 
by  his  agent  thereto  authorized  by  writing; 

2.  By  the  instrument  under  which  the  trustee  claims  the 
estate  affected;  or, 

3.  By  operation  of  law.    En.  March  21,  1872. 

Cal.Rep.Cit.      58,  483; 
90,  607;      94,     72; 
112,  284;   118,  107 


70,  452 
97,  261 
124,  421 
136,     96.       Subd.   1—122,  427 


75,  526;  76,  471;      85,  446 

99,  314;  108,  656;   110,       5 

126,  192;  132,     27;   135,  279 

136,  155.  Subd.   3—136,  634 


§  853.     Transfer    to    one    for    money    paid    by    anc-ther. 

When  a  transfer  of  real  property  is  made  to  one  person, 

and  the  consideration  therefor  is  paid  by  or  for  another,  a 

trust  is  presumed  to  result  in  favor  of  the  person  by  or  for 

whom  such  payment  is  made.    En.  March  21,  1872.    Am'd. 

1873-4,  221. 

Cal.Rep.Cit.     67,  256;     67,  327;      68,  120;     74,     91;     75,  170; 
77,338;      80,518;      85.446;      92,     13  ;   122,  116 ;   127,  247 ; 
132,     28;   136,     95;   136,  96;   136,  463;   138,   569. 

§854.     Rights  of  creditors.     (Repealed.)     En.  March  21, 
1872.    Rep.  1873-4,  221. 


S!  855-858  USES    AND    TRUSTS.  248 

§855.  Section  853  qualified.  (Repealed.)  En.  March  21, 
1872.     Rep.  1873-4,  221. 

§  856.  Purchasers  protected.  No  implied  or  resulting 
trust  can  prejudice  the  rights  of  a  purchaser  or  incum- 
brancer of  real  property  for  value  and  without  notice  of 
the  trust.     En.  March  21,  1872. 

Cal.Rep.Cit.  74,  91 ;   96,  307  ;   115,  335  ;   128,  365. 

Bona  fide  purchasers,  rights  of:    See  sec.  2243,  post. 

Bona  fide  purchasers  generally:    See  post,  sec.  1214. 

§  857.     For  what  purposes  express  trusts  may  be  created. 

Express  trusts  may  be  created  for  any  of  the  following 
purposes: 

1.  To  sell  real  property,  and  apply  or  dispose  of  the  pro- 
ceeds in  accordance  with  the  instrument  creating  the 
trust. 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of 
annuitants  or  other  legatees,  or  for  the  purpose  of  satisfy- 
ing any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  real  property,  and 
pay  them  to  or  apply  them  to  the  use  of  any  person, 
whether  ascertained  at  the  time  of  the  creation  of  the 
trust  or  not,  for  himself  or  for  his  family,  during  the  life 
of  such  person,  or  for  any  shorter  term,  subject  to  the  rules 
of  title  II  of  this  part;  or, 

4.  To  receive  the  rents  and  profits  of  real  property,  and 

to  accumulate  the  same  for  the  purposes  and  within  the 

limits  prescribed  by  the  same  title.     En.  March  21,  1872. 

Am'd.  1873-4,  221. 

Cal.Rep.Cit.  58,478;   58,481;   58,483;   76,144;   79,  67; 

80.  242;  107,  595^  lOS,  648;  108,  656;  121,  385;  123,  144; 

124,  420;  124,  421;  124,  497;  130,  135;  132,  527;  132,  528; 

132,  559;  132,  564;  132,  567;  132,  624;  132,  625;  132,  626; 

135,  279;  136,  103;  136,  155.   Subd.  1  —  85,  506;  108,  646; 

116,  409;  121.  382.   Subd.  2—108,  644;  109,  330;  132,  623. 
Subd.  3— 108, '644;  136,  102.   Subd.  4—133,  423. 

Surplus  of  rents  and  profits:    See  sec.  859,  post. 
Estate  of  trustee:    See  infra,  sec.  863. 

§  858.  Vesting  of  mortgage  powers.  Where  a  power  to 
sell  r6al  property  is  given  to  a  mortgagee,  or  other  incum- 
brancer in  an  instrument  intended  to  secure  the  payment 
of  money,  the  power  is  to  be  deemed  a  part  of  the  security. 


249  USES    AND    TRUSTS.  §§  S59-863 

and  vests  in  any  person  who,  by  assignment,  becomes  en- 
titled to  the  money  so  secured  to  be  paid,  and  may  be  exe- 
cuted by  him  whenever  the  assignment  is  duly  acknowl- 
edged and  recorded.  En.  March  21,  1872.  Rep.  1873-4.  222. 
En.  1873-4,  222. 

Cal.Rep.Cit.   121,  384;   132,  557. 

§  859.     Profits  of  land  liable  to  creditors  in  certain  cases. 

Where  a  trust  is  created  to  receive  the  rents  and  profits  of 
real  property,  and  no  valid  direction  for  accumulation  is 
given,  the  surplus  of  such  rents  and  profits,  beyond  the 
sum  that  may  be  necessary  for  the  education  and  support 
of  the  person  for  whose  benefit  the  trust  is  created,  is  liable 
to  the  claims  of  the  creditors  of  such  person,  in  the  same 
manner  as  personal  property  which  cannot  be  reached  bf 
execution.    En.  March  21,  1872. 

§  860.  Exercise  of  vested  powers.  Where  a  power  Is 
vested  in  several  persons,  all  must  unite  in  its  execution; 
but  in  case  any  one  or  more  of  them  is  dead,  the  power 
may  be  executed  by  the  survivor  or  survivors,  unless  other- 
wise prescribed  by  the  terms  of  the  power.  En.  March 
21,  1872.     Rep.  1873-4,  222.    En.  1873-4,  222. 

Cal.Rep.Cit.   132,  537  ;   132,  552  ;   132,  557  ;   132,  558. 

Death  of  cotrustee,  the  trust  survives  to  the  others: 
Sec.  2288,  post. 

§861.     Creation  of  certain  powers  not  prohibited.     (Re- 
pealed.)    En.  March  21,  1872.     Rep.  1873-4,  222,  223. 
Cal.Rep.Cit.  132,  552. 

§  862.     And    land,    etc.,   to   descend    to   persons   entitled. 
(Repealed.)      En.  March  21,  1872.     Rep.  1873-4,  223. 
Cal.Rep.Cit.  132,   552. 

§  863.  Trustees  of  express  trusts  to  have  whole  estate. 
Except  as  hereinafter  otherwise  provided,  every  express 
trust  in  real  property,  valid  as  such  in  its  creation  vests 
the  whole  estate  in  the  trustees,  subject  only  to  the  execu- 
tion of  the  trust.  The  beneficiaries  take  no  estate  or  inter- 
est in  the  property,  but  may  enforce  the  performance  of 
the  trust.     En.  March  21,  1872. 

Cal.Rep.Cit.  70,331;  79,  68;  85,506;  87,456;  107,596: 
108,  648;  111,  636;  111,  638;  124,  537;  128,  9;  132,  536: 
132,  539;   132,  576;   132,  577;   133,  422. 


|§  864-869  USES    AND    TRUSTS.  250 

Enforcing  performance  of  the  trust:  See  post,  "Obliga- 
tion of  Trustees,"  sees.  2228-2239,  and  sees.  2258-2263. 

§  864.  Author  of  trust  may  devise,  etc.  Notwithstand- 
ing anything  contained  in  the  last  section,  the  author  of 
a  trust  may,  in  its  creation,  prescribe  to  whom  the  real 
property  to  which  the  trust  relates  shall  belong,  in  the 
event  of  the  failure  or  termination  of  the  trust,  and  may 
transfer  or  devise  such  property,  subject  to  the  execution 
of  the  trust.    En.  March  21,  1872. 

Cal.Rep.Cit.      70,  240;      70,  331;      70,  332;      87,  456;   111,  638; 
121,  383;   132,  547;   132,  553;   132,  563;   132,  576;   136,  105. 

§  865.     Title  of  grantee  or  devisee  of  trust  property.   The 

grantee  or  devisee  of  real  property  subject  to  a  trust  ac- 

» quires  a  legal  estate  in  the  property,  as  against  all  persons 

except   the    trustees    and    those    lawfully    claiming    under 

them.     En.  March  21,  1872. 

Cal.Rep.Cit.  70,  240  ;   121,  383. 

§866.     Interests   remaining   In   grantor  of  express  trust. 

Where  an  express  trust  is  created  in  relation  to  real  prop- 
erty, every  estate  not  embraced  in  the  trust,  and  not  other- 
wise disposed  of,  is  left  in  the  author  of  the  trust  or  his 
successors.    En.  March  21,  1872. 

Cal.Rep.Cit.  70,  331;   109,  331;   124,  420;   132,  576;   136,  105. 

§867.  Restraining  disposition  of  trusts.  The  benefi- 
ciary of  a  trust  for  the  receipt  of  the  rents  and  profits  of 
real  property,  or  for  the  payment  of  an  annuity  out  of  such 
rents  and  profits,  may  be  restrained  from  disposing  of  his 
interest  in  such  trust,  during  his  life  or  for  a  term  of  years, 
by  the  instrument  creating  the  trust.  En.  March  21,  1872. 
Am'd.  1873-4,  223. 

Cal.Rep.Cit.   Ill,  637  ;   123,  422. 

Accumulations:     See  ante,  sees.  722  et  seq.;  sec.  859. 

§368.  Same.  (Repealed.)  En.  March  21,  1872.  Rep. 
1873-4,  223. 

§869.  Effect  of  omitting  trust  in  conveyance.  Where 
an  express  trust  is  created  in  relation  to  real  property, 
but  is  not  contained  or  declared  in  the  grant  to  the  trustee, 
or  in  an  instrument  signed  by  him,  and  recorded  in  the 
same  office  with  the  grant  to  the  trustee,  such  grant  must 


251  POWERS.  §§  8T0-942 

be  deemed  absolute  in  favor  of  purchasers  from  such  trus- 
tee without  notice,  and  for  a  valuable  consideration.     En. 
March  21,  1872.     Am'd.  1873-4,  223. 
Cal.Rep.Cit.   125,   12. 

Purchaser,  when  charged  with  implied  or  resulting  trust: 
See  sec.  856,  ante. 

§  870.  Certain  sales,  etc.,  by  trustees,  void.  Where  a 
trust  in  relation  to  real  property  is  expressed  in  the  in- 
strument creating  the  estate,  every  transfer  or  other  act 
of  the  trustees,  m  contravention  of  the  trust,  is  absolutely 
void.    En.  March  21,  1872. 

Cal.Rep.Cit.  70,  331;   106,  534;   108,  649;   134,  645;   134,  657. 

§871.  When  estate  of  trustee  to  cease.  "When  the  pur- 
pose for  which  an  express  trust  was  created  ceases,  the 
estate  of  the  trustee  also  ceases.    En.  March  21.  1872. 

Cal.Rep.Cit.      58,     72;      70,  331;   119,  409;   121,  384;   124.  420; 
132,  575;    133,     52;    136,  105. 


TITLE   Y. 

POWERS. 

Title  V,  of  part  II,  of  division  II,  on  Powers,  of  the  Civil 
Code,  embracing  sections  of  said  code  from  section  878  to 
945,  inclusive,  is  repealed.  En.  March  21,  1872.  Rep. 
1873-4.  223. 

§  878. 

Cal.Rep.Cit.   132,   557. 

§  880. 

Cal.Rep.Cit.   108,   185. 

§894. 

Cal.Rep.Cit.  121,   384. 

§895. 

Cal.Rep.Cit.  121,   384;  132,  557. 

§900. 

Cal.Rep.Cit.  132,   557. 

§942. 

Cal.Rep.Cit.   127.  561. 


PART   III. 


PERSONAL    OR    MOVABLE    PROPERTY. 

Title  I.     Personal  Property  in  General,  §§  946,  947.     . 

11.     Particular  Kinds  of  Personal  Property,  §§  953-994. 


TITLE    I. 

PERSONAL  PROPERTY  IN  GENERAL. 

§  946.     By  what  law  governed. 

I  947.     Future     interests    in    perishable    property,     how    protected. 
(Repealed.) 

§  946.  By  what  law  governed.  If  there  is  no  law  to  the 
contrary  in  the  place  where  personal  property  is  situated, 
it  is  deemed  to  follow  the  person  of  its  owner,  and  is 
governed  by  the  law  of  his  domicile.  En.  March  21,  1872. 
Rep.  1873-4,  223.    En.  1875-6,  78. 

Cal.Rep.Cit.  105,  199  ;   105,  201. 

i§  946  having  been  repealed  by  clerical  error  in  1874, 
was  re-enacted  at  session  of  1875-6.] 

§  947.  Future  interests  in  perishable  property,  how  pro- 
tected.    (Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  223. 


TITLE    IL 

PARTICULAR  KINDS  OF  PERSONAL  PROPERTY. 

Chapter  I.  Things  in  Action,  §§  953,  954. 

II.  Shipping,  §§960-973. 

III.  Products  of  the  Mind,  §§  980-985. 

rv.  Other  Kinds  of  Personal  Property,   §§  991-994. 


253  THINGS    IN    ACTION— SHIPPING.  §§  953-960 

CHAPTER    I. 

THINGS    IN    ACTION. 

§  953.     Things  In  action  defined. 
§  954.     Transfer  and  survivorship. 

§  953.  Things  in  action  defined.  A  thing  in  action  is  a 
right  to  recover  money  or  other  personal  property  by  a 
judicial  proceeding.  En.  March  21,  1872.  Am'd.  1873-4, 
223. 

Cal.Rep.Cit.  123,  161. 

§  954.  Transfer  and  survivorship.  A  thing  in  action, 
ai'ising  out  of  the  violation  of  a  right  of  property,  or  out  of 
an  obligation,  may  be  transferred  by  the  owner.  Upon  the 
death  of  the  owner  it  passes  to  his  personal  representa- 
tives, except  where,  in  the  cases  provided  in  the  Code  of 
Civil  Procedure,  it  passes  to  his  devisees  or  successor  in 
office.    En.  March  21,  1872. 

Transfer  of  obligations:      Sec.  1458,  post. 

Suing  on  choses  in  action;  See  Code  Civ.  Proc,  sees. 
367-369,  1582,  1583. 


CHAPTER    IL 
SHIPPING. 

Article  I.     General  Provisions,   §§  960-966. 
II.     Rules  of  Navigation,  §§  970-973. 


ARTICLE    I. 

GENERAL    PROVISIONS. 

§  960.  Definition  of  a  ship. 

§  961.  Appurtenances  and  equipments. 

§  962.  Foreign  and  domestic  navigation. 

§  963.  Foreign  and  domestic  ships  distinguished. 

§  964.  Several  owners. 

§  965.  Owner  for  voyage. 

I  966.  Registry,  etc. 

§960.  Definition  of  a  ship.  The  term  "ship,  or  ship- 
ping," when  used  in  this  code,  includes  steamboats,  sailing 
vessels,  canal  boats,  barges,  and  every  structure  adapted 
to  be  navigated  from  place  to  place  for  the  transportation 


§§  961-966  SHIPPING.  254 

of  merchandise  or  persons.     En.   March  21,   1872.     Am'd. 
1873-4,  224. 

§961.  Appurtenances  and  equipments.  All  things,  be- 
longing to  the  owners,  which  are  on  board  a  ship,  and  are 
connected  with  its  proper  use,  for  the  objects  of  the  voyage 
and  adventure  in  which  the  ship  fs  engaged,  are  deemed  its 
appurtenances.    En.  March  21,  1872. 

§  962.  Foreign  and  domestic  navigation.  Ships  are  en- 
gaged either  in  foreign  or  domestic  navigation,  or  in  the 
fisheries.  Ships  are  engaged  in  foreign  navigation  when 
passing  to  or  from  a  foreign  country;  and  in  domestic  navi- 
gation, when  passing  from  place  to  place  within  the  Uni- 
ted States.    En.  March  21,  1872. 

§  963.  Foreign  and  domestic  ships  distinguished.  A  ship 
in  a  port  of  the  state  to  which  it  belongs  is  called  a  do- 
mestic ship;  in  another  port  it  is  called  a  foreign  ship.  En. 
March  21,  1872. 

§  964.  Several  owners.  If  a  ship  belong  to  several  per- 
sons, not  partners,  and  they  differ  as  to  its  use  or  repair, 
the  controversy  may  be  determined  by  any  court  of  compe- 
tent jurisdiction.    En.  March  21,  1872. 

§  965.  Owner  for  voyage.  If  the  owner  of  a  ship  com- 
mits its  possession,  and  navigation  to  another,  that  other, 
and  not  the  owner,  is  responsible  for  its  repairs  and  sup- 
plies.   En.  March  21,  1872. 

Charter  party  defined:    See  post,  sec.  1959. 

§  966.  Registry,  etc.  The  registry,  enrollment,  and  li- 
cense of  ships  are  regulated  by  acts  of  congress.  En. 
March  21,  1872. 


255  SHIPPING.  §  970 

ARTICLE    II. 

RULES    OP    NAVIGATION. 

I  870.     Conisions. 

1.  Rules  as  to  ships  meeting  each  other. 

2.  The  rule  for   sailing  vessels. 

3.  Rules  for  steamers  in  narrow  channels. 

4.  Same. 

5.  Rules  for  steam  vessels  on  different  courses. 

6.  Meeting  of  steamers. 

§  971.      Collision  from  breach  of  rules. 

§   972.      Breaches  of  such  rules  to  imply  willful  default. 

§   973.      Loss,  how  apportioned. 

§  970.  Ccllisions.  In  the  case  of  ships  meeting,  the  fol- 
lowing rules  must  be  observed,  in  addition  to  those  pre- 
scribed by  that  part  of  the  Political  Code  which  relates 
to  navigation: 

1.  Rules  as  to  ships  meeting  each  other.  "Whenever  any 
ship,  whether  a  steamer  or  sailing  ship,  proceeding  in  one 
direction,  meets  another  ship,  whether  a  steamer  or  sailing 
ship,  proceeding  in  another  direction,  so  that  if  both  ships 
were  to  continue  their  respective  courses  they  would  pass 
so  near  as  to  involve  the  risk  of  a  collision,  the  helms  of 
both  ships  must  be  put  to  port  so  as  to  pass  on  the  port 
side  of  each  other;  and  this  rule  applies  to  all  steamers  and 
all  sailing  ships,  whether  on  the  port  or  starboard  tack, 
and  whether  close-hauled  or  not,  except  where  the  circum- 
stances of  the  case  are  such  as  to  render  a  departure  from 
the  rule  necessary  in  order  to  avoid  immediate  danger,  and 
subject  also  to  a  due  regard  to  the  dangers  of  navigation, 
and,  as  regards  sailing  ships  on  the  starboard  tack  close- 
hauled,  to  the  keeping  such  ships  under  command; 

2.  The  rule  for  sailing  vessels.*  In  the  case  of  sailing 
vessels,  those  having  the  wind  fair  must  give  way  to  those 
on  a  wind.  When  both  are  going  by  the  wind,  the  vessel 
on  the  starboard  tack  must  keep  her  wind,  and  the  one  on 
the  larboard  tack  bear  up  strongly,  passing  each  other  on 
the  larboard  hand.  When  both  vessels  have  the  wind 
large  or  abeam,  and  meet,  they  must  pass  each  other  in  the 
same  way  on  the  larboard  hand,  to  effect  which  two  last- 
mentioned  objects  the  helm  must  be  put  to  port.  Steam 
vessels  must  be  regarded  as  vessels  navigating  with  a  fair 


J§  971,  972  SHIPPING.  256 

wind,  an<J  should  give  way  to  sailing  vessels  on  a  wind  of 
either  tacK; 

3.  Rules  for  steamers  in  narrow  channels.  A  steamer 
navigating  a  narrow  channel  must,  whenever  it  is  safe  and 
practicable,  keep  to  that  side  of  the  fairway  or  midchannel 
which  lies  on  the  starboard  side  of  the  steamer;  ' 

4.  Same.  A  steamer  when  passing  another  steamer  in 
such  channel,  must  always  leave  the  other  upon  the  lar- 
board side; 

5.  Rules  for  steam  vessels  on  different  courses.  When 
steamers  must  inevitably  or  necessarily  cross  so  near  that 
by  continuing  their  respective  courses,  there  would  be  a 
risk  of  collision,  each  vessel  must  put  her  helm  to  port,  so 
as  always  to  pass  on  the  larboard  side  of  each  other; 

6.  Meeting  of  steamers.  The  rules  of  this  section  do  not 
apply  to  any  case  for  which  a  different  rule  is  provided  by 
the  regulations  for  the  government  of  pilots  of  steamers 
approaching  each  other  within  sound  of  the  steam-whistle, 
or  by  the  regulations  concerning  lights  upon  steamers, 
prescribed  under  authority  of  the  acts  of  congress,  ap- 
proved August  thirtieth,  eighteen  hundred  and  fifty-two, 
and  April  twenty-ninth,  eighteen  hundred  and  sixty-four. 
En.  March  21,  1872. 

For  rules  of  navigation,  etc.:  See  Pol.  Code,  sees.  2360- 
2379. 

§971.  Collision  from  breach  of  rules.  If  it  appears  that 
a  collision  was  occasioned  by  failure  to  observe  any  rule 
of  the  foregoing  section,  the  owner  of  the  ship  by  which 
such  rule  is  infringed  cannot  recover  compensation  for 
damages  sustained  by  the  ship  in  such  collision,  unless  it 
appears  that  the  circiynstances  of  the  case  made  a  de- 
parture from  the  rule  necessary.    En.  March  21,  1872. 

§972.  Breaches  of  such  rules  to  imply  willful  default. 
Damage  to  person  or  property  arising  from  the  failure  of 
a  ship  to  observe  any  rule  of  section  970,  must  be  deemed 
to  have  been  occasioned  by  the  willful  default  of  the  per- 
son in  charge  of  the  deck  of  such  ship  at  the  time,  unless 
it  appears  that  the  circumstances  of  the  case  made  a  de- 
parture from  the  rule  necessary.    En.  March  21,  1872. 


257  PKODUCTS    OF    THE    MIND.  §§  973-9S1 

§  973.  Loss,  how  apportioned.  Losses  caused  by  colli- 
sion are  to  be  borne  as  follows: 

1.  If  either  party  was  exclusively  in  fault  he  must  bear 
his  own  loss,  and  compensate  the  other  for  any  loss  he  has 
sustained; 

2.  If  neither  was  in  fault,  the  loss  must  be  borne  by  him 
on  whom  it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided, 
unless  it  appears  that  there  was  a  great  disparity  in  fault, 
in  which  case  the  loss  must  be  equitably  apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault  lies,  the 
loss  must  be  equally  divided.    En.  March  21,  1872. 


CHAPTER    III. 
PRODUCTS    OF    THE    MIND. 

§  980.  How  far  the  subject  of  ownership. 

§   981.  Joint  authorstip. 

§   982.  Transfer. 

§  983.  Effect  of  publication. 

§   984.  Subsequent   inventor,  author,  etc. 

§   985.  Private  writings. 

§  980.     How  far  the  subject  of  ownership.     The  author 

of  any  product  of  the  mind,  whether  it  is  an  invention,  or 
a  composition  in  letters  or  art,  or  a  design,  with  or  with- 
out delineation,  or  other  graphical  representation,  has  an 
exclusive  ownership  therein,  and  in  the  representation  or 
expression  thereof,  which  continues  so  long  as  the  pro- 
duct and  the  representations  or  expressions  thereof  made 
by  him  remain  in  his  possession.    En.  March  21,  1872. 

Trademarks:  See  Pol.  Code,  sees.  3196  et  seq.,  and  sec. 
991  of  this  code. 

§  981.  Joint  authorship.  Unless  otherwise  agreed,  a  pro- 
duct of  the  mind  in  the  production  of  which  several  per- 
sons are  jointly  concerned  is  owned  by  them  as  follows: 

1,  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of 
each.    En.  March  21,  1872. 


§§982-991  OTllKR    KINDS   OF   PERSONAL   PROPERTY.  258 

§  982.  Transfer.  The  owner  of  any  product  of  the  mind, 
or  of  any  representation  or  expression  thereof,  may  trans- 
fer Ms  property  in  the  same.    En.  March  21,  1872.    " 

§983.  Effect  of  publication.  If  the  owner  of  a  product 
of  the  mind  intentionally  makes  it  public,  a  copy  or  repro- 
duction may  be  made  public  by  any  person,  without  re- 
sponsibility' to  the  owner,  so  far  as  the  law  of  this  state 
is  concerned.    En.  March  21,  1872. 

§  984.  Subsequent  inventor,  author,  etc.  If  the  owner 
of  a  product  of  the  mind  does  not  make  it  public,  any 
other  person  subsequently  and  originally  producing  the 
same  thing  has  the  same  right  therein  as  the  prior  author, 
which  is  exclusive  to  the  same  extent  against  all  persons 
except  the  prior  author,  or  those  claiming  under  him.  En. 
March  21,  1872. 

§  985.  Private  writings.  Letters  and  other  private  com- 
munications in  writing  belong  to  the  person  to  whom  they 
are  addressed  and  delivered ;  but  they  cannot  be  published 
against  the  will  of  the  writer,  except  by  authority  of  law. 
En.  March  21,  1872. 


CHAPTER    IV. 

OTHER  KINDS  OF  PERSONAL  PROPERTY. 

S  991.  Trade-marks. 

I  992.  Goodwill  of  business. 

I  993.  Same. 

§  994.  Title  deeds. 

§991.  Trade-marks.  One  who  produces  or  tleals  In  a 
particular  thing,  or  conducts  a  particular  business,  may  ap- 
propriate to  his  exclusive  use,  as  a  trade-mark,  any  form, 
symbol,  or  name,  which  has  not  been  so  appropriated  by 
another,  to  designate  the  origin  or  ownership  thereof;  but 
he  cannot  exclusively  appropriate  any  designation,  or  part 
of  a  designation,  which  relates  only  to  the  name,  quality, 
or  the  description  of  the  thing  or  business,  or  the  place 
where  the  thing  is  produced,  or  the  business  is  carried  on. 
En.  March  21,  1872.    Am'd.  1873-4,  224. 

Cal.Rep.Cit.   63,  446;  100,  677;   103,  73;  136.  352. 


259  OTHER  KINDS  OP  PERSONAL  PROPERTY.  §§  992-994 

Aa  to  trade-marks:  See  Pol.  Code,  sees.  3196-3198;  Pen. 
Code,  sees.  350-354. 

Aet  to  proteet  trade-marks:  See  post,  Appendix,  title 
Trademarks. 

§  992.  Good  will  of  business.  The  good  will  of  a  busi- 
ness is  the  expectation  of  continued  public  patronage,  but 
it  does  not  include  a  right  to  use  the  name  of  any  person 
from  whom  it  was  acquired.    En.  March  21,  1872. 

Cal.Rep.Cit.   71,  148  ;   114,  664 ;   124,  431. 

Good  will:    See  post,  sec.  1674. 

§  993.    Same.    The  good  will  of  a  business  is  property, 

transferable  like  any  other.    En.  March  21,  1872. 

Cal.Rep.Cit.   71,  148 ;   114,  664  ;   124,  431. 

§  994.  Title  deeds.  Instruments  essential  to  the  title  of 
real  property,  and  which  are  not  kept  in  a  public  office  as 
a  record,  pursuant  to  law,  belong  to  the  person  in  whom, 
for  the  time  being,  such  title  may  be  vested,  and  pass 
with  the  title.    En.  March  21,  1872. 

Cal.Rep.Cit.  55,  566. 


PART    IV. 


ACQUISITION  OF  PROPERTY. 

Title  I.  Modes    in    which    Property    m%y    be    Acquired, 

§§  1000-1001. 

II.  Occupancy,  §§  1006-1007. 

III.  Accession,  §§  1013-1033. 

IV.  Transfer,  §§1039-1231. 

V.  Homesteads,  §§1237-1269. 

VI.  Wills,  §§  1270-1377. 

VII.  Succession,  §§  1383-1408. 

VIII.  Water  Rights,  §§  1410-1422. 

IX.  Hydraulic  Mining,  §§1424-1425. 


TITLE    I. 

MODES    IN    WHICH    PROPERTY    MAY    BE    ACQUIRED. 

§  1000.     Property,  how  acquired. 

I  1001.     Acquisition  of  property  by  exercise  of  eminent  domain. 

§  1000.  Property,  how  acquired.  Property  is  acquired 
by: 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or 

5.  Succession.    En.  March  21,  1872, 
Cal.Rep.Cit.  112.  394. 

§  1001.  Acquisition  of  property  by  exercise  of  eminent 
domain.  Any  person  may,  without  further  legislative 
action,  acquire  private  property  for  any  use  specified  in 
section  1238  of  the  Code  of  Civil  Procedure,  either  by  con- 
sent of  the  owner  or  by  proceedings  had  under  the  provi- 
sions of  title  VII,  part  III,  of  the  Code  of  Civil  Procedure; 
and  any  person  seeking  to  acquire  property  for  any  of  the 
uses  mentioned  in  such  title  is  "an  agent  of  the  state,"  or 
a  "person  in  charge  of  such  use,"  within  the  meaning  of 
those  terms  as  used  in  such  title.    This  section  shall  be  in 


261  OCCUPANCY— ACCESSION.  §§  1006-1013 

force  from  and  after  the  fourth  day  of  April,  eighteen  hun- 
dred and  seventy-two.     En.  March  21,  1872. 

Cal.Rep.Cit.     62.183;     69,301;      79,162;     79.550;     91,248; 
95.  Ill;      95,  112;      99,  213;   119.  165;   129,     11;   137.  632. 

Eminent  domain:  See  Code  Civ.  Proc,  sees.  1237-1263. 


TITLE    II. 

OCCUPANCY. 

S  1006.     Simple  occupancy. 
§  1007.     Prescription. 

§  1006.  Simple  occupancy.  Occupancy  for  any  period 
confers  a  title  sufficient  against  all  except  the  state  and 
those  who  have  title  by  prescription,  accession,  transfer, 
will,  or  succession.    En.  March  21,  1872. 

Cal.Rep.Cit.70,  240;   83,  288;   91.  385;  133.  636. 

§  1007.  Prescription.  Occupancy  for  the  period  pre- 
scribed by  the  Code  of  Civil  Procedure  as  sufficient  to  bar 
an  action  for  the  recovery  of  the  property  confers  a  title 
thereto,  denominated  a  title  by  prescription,  which  is  suffi- 
cient against  all.     En.  March  21,  1872. 

Cal.Rep.Cit.     56.     75;     71,458;     83,289;     97,273;     98,349; 
98,  350;   102,  684;   106.  695;   109.     18;   128,  187;   136.  293. 

Adverse  possession  passing  title:  See  Code  Civ.  Proc, 
sees.  321  et  seq. 

TITLE    IIL 

ACCESSION. 
Chapter  I.     To  Real  Property,  §§  1013-1019. 

II.     To  Personal  Property,  §§  1025-1083. 

CHAPTER    I. 

ACCESSION    TO    REAL    PROPERTY, 

S  1013.  Fixtures. 

§  1014.  Alluvion. 

§  1015.  Sudden  removal  of  bank. 

§  1016.  Islands,  in  navigable  streams. 

§  1017.  In  unnavigable  streams. 

§  1018.  Islands  formed  by  division  of  stream. 

S  1019.  What  fixtures  tenant  may  remove. 

§  1013.  Fixtures.  When  a  person  affixes  his  property 
to  the  land  of  another,  without  an  agreement  permitting 


§§  1014-1018  ACCESSION    TO    REAL    PROPERTY.  262 

him  to  remove  it,  the  thing  aflBxed,  except  as  provided  in 
section  ten  hundred  and  nineteen,  belongs  to  the  owner  of 
the  land,  unless  he  chooses  to  require  the  former  to  re- 
move it.    En.  March  21,  1872.    Am'd.  1873-4,  224. 

Cal.Rep.Cit.   86,  339  ;   118,  636. 

Fixtures:    See  ante,  sec.  660. 

§  1014.  Alluvion.  Where,  from  natural  causes,  land 
forms  by  imperceptible  degrees  upon  the  bank  of  a  river 
or  stream,  navigable  or  not  navigable,  either  by  accumu- 
lation of  matei'ial  or  by  the  recession  of  the  stream,  such 
land  belongs  to  the  owner  of  the  bank,  subject  to  any  ex- 
isting right  of  way  over  the  bank.     En.  March  21,  1872. 

Cal.Rep.Cit.   78,   636. 

§  1015.  Sudden  removal  of  bank.  If  a  river  or  stream, 
navigable  or  not  navigable,  carries  away,  by  sudden 
violence,  a  considerable  and  distinguishable  part  of  a  bank, 
and  bears  it  to  the  opposite  bank,  or  to  another  part  of  the 
same  bank,  the  owner  of  the  part  carried  away  may  re- 
claim it  within  a  year  after  the  owner  of  the  land  to  which 
it  has  been  united  takes  possession  thereof.  En.  March 
21,  1872. 

§  1016.  Islands,  in  navigable  streams.  Islands  and  ac- 
cumulations of  land,  formed  in  the  beds  of  streams  which 
are  navigable,  belong  to  the  state,  if  there  is  no  title  or 
prescription  to  the  contrary.    En.  March  21,  1872. 

Cal.Rep.Cit.   99,  309  ;   125,  662  ;   135,  550. 

§  1017.  In  unnavigable  streams.  An  island,  or  an  ac- 
cumulation of  land,  formed  in  a  stream  which  is  not 
navigable,  belongs  to  the  owner  of  the  shore  on  that  side 
where  the  island  or  accumulation  is  formed;  or,  if  not 
formed  on  one  side  only,  to  the  owners  of  the  shore  on  the 
two  sides,  divided  by  an  imaginary  line  drawn  through  the 
middle  of  the  river.    En.  March  21,  1872. 

§  1018.     Islands    formed    by    division    of    stream.      If    a 

stream,  navigable  or  not  navigable,  in  forming  itself  a  new 
arm,  divides  itself  and  surrounds  land  belonging  to  the 
owner  of  the  shore,  and  thereby  forms  an  island,  the 
island  belongs  to  such  owner.    En.  March  21,  1872. 


263         ACCESSION    TO    PERSONAL    PROPERTY.  §§1019-1027 

§  1019.  What  fixtures  tenant  may  remove.  A  tenant 
may  remove  from  the  demised  premises  any  time  during 
the  continuance  of  his  term,  anything  affixed  thereto  for 
purposes  of  trade,  manufacture,  ornament,  or  domestic 
use,  if  the  removal  can  be  effected  without  injury  to  the 
premises,  unless  the  thing  has,  by  the  manner  in  which  it 
is  affixed,  become  an  integral  part  of  the  premises.  En. 
March  21,  1872.     Rep.  1873-4,  224.    En.  1873-4,  224. 

Cal.Rep.Cit.  86,  339;   99.  639;   105,  19;   118,  636;  118.  639. 


CHAPTER    II. 

ACCESSION    TO    PERSONAL    PROPERTY. 

§  1025.  Accession  by  uniting  several  things. 

§  1026.  Principal  part,  what. 

§  1027.  Same. 

I  1028.  Uniting  materials   and  workmanship. 

§  1029.  Inseparable  materials. 

§  1030.  Materials  of  several  owners. 

§   1031.  Willful  trespassers. 

§  1032.  Owner  may  elect  between  the  thing  and  Its  value. 

I  1033.  Wrongdoer  liable  in  damages. 

§  1025.  Accession  by  uniting  several  things.  When 
things  belonging  to  different  owners  have  been  united  so 
as  to  form  a  single  thing,  and  cannot  be  separated  without 
injury,  the  whole  belongs  to  the  owner  of  the  thing 
which  forms  the  principal  part;  who  must,  however,  re- 
imburse the  value  of  the  residue  to  the  other  owner,  or 
surrender  the  whole  to  him.    En.  March  21,  1872. 

Cal.Rep.Cit.   130,  320. 

§  1026.  Principal  part,  what.  That  part  is  to  be  deemed 
the  principal  to  which  the  other  has  been  united  only  for 
the  use,  ornament,  or  completion  of  the  former,  unless  the 
latter  is  the  more  valuable,  and  has  been  united  without 
the  knowledge  of  its  owner,  who  may,  in  the  latter  case, 
require  it  to  be  separated  and  returned  to  him,  although 
some  injury  should  result  to  the  thing  to  which  it  has  been 
united.    En.  March  21,  1872. 

§  1027.  Same.  If  neither  part  can  be  considered  the 
principal,  within  the  rule  prescribed  by  the  last  section, 
the  more  valuable,  or,  if  the  values  are  nearly  equal,  the 
more  considerable  in  bulk,  is  to  be  deemed  the  principal 
part.     En.  March  21,  1872. 


5§102S-1032  ACCESSION     TO     PERSONAL    PROPERTY.  264 

§  102S.  Uniting  materials  and  workmanship.  If  one 
makes  a  thing  from  materials  belonging  to  another,  the 
latter  may  claim  the  thing  on  reimbursing  the  value  of 
the  workmanship,  unless  the  value  of  the  workmanship 
exceeds  the  value  of  the  materials,  in  which  case  the 
thing  belongs  to  the  maker,  on  reimbursing  the  value  of 
the  materials.    En.  March  21,  1872. 

§  1029.  Inseparable  materials.  Where  one  has  made 
use  of  materials  which  in  part  belong  to  him  and  in  part 
to  another,  in  order  to  form  a  thing  of  a  new  description, 
without  having  destroyed  any  of  the  materials,  but  in  such 
a  way  that  they  cannot  be  separated  without  inconvenience, 
the  thing  formed  is  common  to  both  proprietors;  in  pro- 
portion, as  respects  the  one,  of  the  materials  belonging  to 
him,  and  as  respects  the  other,  of  the  materials  belonging 
to  him  and  the  price  of  his  workmanship.  En.  March  21, 
1872. 

§  1030.  Materials  of  several  owners.  When  a  thing  has 
been  formed  by  the  admixture  of  several  materials  of 
different  owners,  and  neither  can  be  considered  the  prin- 
cipal substance,  an  owner  without  whose  consent  the  ad- 
mixture was  made  may  require  a  separation,  if  the 
materials  can  be  separated  without  inconvenience.  If  they 
cannot  be  thus  separated,  the  owners  acquire  the  thing 
in  common,  in  proportion  to  the  quantity,  quality  and 
value  of  meir  materials;  but  if  the  materials  of  one  were 
far  superior  to  those  of  the  others,  both  in  quantity  and 
value,  he  may  claim  the  thing  on  reimbursing  to  the  others 
tjie  value  of  their  materials.    En.  March  21,  1872. 

Cal.Rep.Cit.   128,   641. 

§  1031.  Willful  trespassers.  The  foregoing  sections  of 
this  article  are  not  applicable  to  cases  in  which  one  will- 
fully uses  the  materials  of  another  without  his  consent; 
but,  in  such  cases,  the  product  belongs  to  the  owner  of  the 
material,  if  its  identity  can  be  traced.    En.  March  21,  1872. 

§  1032.  Owner  may  elect  between  the  thing  and  its  value. 
In  all  cases  where  one  whose  material  has  been  used  with- 
out his  knowledge,  in  order  to  form  a  product  of  a  diuerent 
description,  can  claim  an  interest  in  such  product,  he  has 
an  option  to  demand  either  restitution  of  his  material  in 


265  TRANSFERS    IN    GENERAL.  §§  1033-1040 

kind,  in  the  same  quantity,  weight,  measure,  and  quality, 
or  the  value  thereof;  or  where  he  is  entitled  to  the  pro- 
duct, the  value  thereof  in  place  of  the  product.  En.  March 
21,   1872. 

§  1033.  Wrongdoer  liable  in  damages.  One  who  wrong- 
fully employs  materials  belonging  to  another  is  liable  to 
him  in  damages,  as  well  as  under  the  foregoing  provisions 
of  this  chapter.     En.  March  21,  1872. 

Cal.Rep.Cit.   106,  205. 


TITLE    IV. 

TRANSFER.      * 

Chapter    I.  Transfer  in  General,  §§  1039-1085. 

II.  Transfer  of  Real  Property,  §§  1091-1115. 

III.  Transfer  of  Personal  Property,   §§  1135-1153. 

IV.  Recording  Transfers  of  Real  Property,  §§  1158- 

1217. 
V.    Unlawful  Transfers,  §§  1227-1231. 

CHAPTER    I. 

TRANSFERS    IN    GENERAL. 

Article  I.  Definition   of   Transfer,    §§  1039-1040. 

II.  What  may  be  Transferred,  §§  1044-1047. 

III.  Mode  of  Transfer,  §§  1052-lu60. 

IV.  Interpretation   of   Grants,    §§  1066-1072. 
V.  Effect  of  Transfer,  §§  10S3-10S5. 

ARTICLE    I. 

DEFINITION    OF    TRANSFER. 

S  10S9.     Transfer,  what. 
I  1040.     Voluntary  transfer. 

§  1039.  Transfer,  wliat.  Transfer  is  an  act  of  the 
parties,  or  of  the  law  by  which  the  title  to  property  is 
conveyed  from  one  living  person  to  another.  En.  March  21, 
1872. 

Cal.Rep.Cit.  58.  15 ;   58,  484 ;  106,  205. 

§  1040.  Voluntary  transfer.  A  voluntary  transfer  Is  an 
executed  contract,  subject  to  all  rules  of  law  concerning 

Civ.  Code— 12 


§§  1044-1047  TRANSFERS    IN'    GENERAL.  266 

contracts  in  general;    except  that  a  consideration   is  not 
necessary  to  its  validity.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  532;   79,  530;   95,  74;   108,  tt59 ;   122.  428. 

Gifts:     See  sees.  1146  et  seq. 


ARTICLE    II. 

WHAT    MAY    BE    TRANSFERRED. 

9  1044.  What  may  be  transferred. 

§   1045.  Possibility. 

I  1046.  Right  of  re-entry  can  be  transferred. 

I  1047.  Owner  ousted  of  possession  may  transfer. 

§  1044.  What  may  be  transferred.  Property  of  any  kind 
may  be  transferred,  except  as  otherwise  provided  by  this 
article.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,  623;   84,  283;   109,  37. 

§  1045.  Possibility.  A  mere  possibility,  not  coupled 
with  an  interest,  cannot  be  transferred.  En.  March  21, 
1872. 

Cal.Rep.Cit.  74,  623;   104,  584;   138,  361. 

§  1046.  Right  of  re-entry  can  be  transferred.  A  right 
of  re-entry,  or  of  repossession  for  breach  of  condition  sub- 
sequent, can  be  transferred.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,   623. 

§  1047.  Owner  ousted  of  possession  may  transfer.  Any 
person  claiming  title  to  real  property  in  the  adverse 
possession  of  another  may  transfer  it  with  the  same  effect 
as  if  in  actual  possession.    En.  March  21,  1872. 

Cal.Rep.Cit.   55,  128;   74,  623. 

Mortgage  upon  property  held  adversely:  See  post,  sec. 
2921. 

ARTICLE    III. 

MODE    OF    TRANSFER. 

§  1052.  When  oral. 

§  1053.  Grant,  what. 

§  1054.  Delivery  necessary. 

§  1055.  Date. 

§  1056.  Delivery  to  grantee  Is  necessarily  absolute. 

§  1057.  Delivery  in  escrow. 

§  1058.  Surrendering  or  canceling  grant  does  not  reconvey. 

§  1059.  Constructive  delivery. 

I  1060.  Gratuitous     grants     take     effect     immediately ;     exception. 
(Repealed.) 


267  TRANSFERS    IN    GENERAL.  §§  1052-1057 

§  1052.  When  oral.  A  transfer  may  be  made  without 
writing,  in  every  case  in  which,  a  writing  is  not  expressly 
required  by  statute.    En.  March  21,  1872. 

Cal.Rep.Cit.   70,  452;   121,  377;   12S,  530;   128,  633. 

What  contracts  must  be  in  writing:    See   post,  sec.  1624. 

Unlawful  transfers:     See  sees.  1227  et  seq. 

Fi'audulent  instruments  and  transfers:  See  post,  sees. 
3439  et  seq. 

§  1053.  Grant,  what.  A  transfer  in  writing  is  called  a 
grant,  or  conveyance,  or  bill  of  sale.  The  term  "  grant," 
in  this  and  the  next  two  articles,  includes  all  these  in- 
struments, unless  it  is  specially  applied  to  real  property. 
En.  March  21,  1872.    Am'd.  1873-4,  225. 

Cal.Rep.Cit.     55,  565;     58,     15;     67,  556;     93,  668;  101,  240; 

134,  605. 

Covenants  implied  from  a  "grant"  of  realty:  See  post, 
sec.  1113. 

§  1054.  Delivery  necessary.  A  grant  takes  effect,  so  as 
to  vest  the  interest  intended  to  be  transferred,  only  upon 
its  delivery  by  the  grantor.    En.  March  21,  1872. 

Cal.Rep.Cit.   51,  74;   67.  556;   127,  467. 

Constructive  delivery:    See  sec.  1059,  infra. 
Contract  in  writing  takes  effect  only  from  delivery:    See 
post,  sec.  1626. 

§  1055.  Date.  A  grant  duly  executed  is  presumed  to 
have  been  delivered  at  its  date.    En.  March  21,  1872. 

Cal.Rep.Cit.     61,  148;     75,  243;   108,  268;   120,  315;   122,  362; 

135,  314;   135,  319, 

§  1056.     Delivery  to  grantee   is  necessarily  absolute.     A 

grant  cannot  be  delivered  to  the  grantee  conditionally. 
Delivery  to  him,  or  to  his  agent  as  such,  is  necessarily 
absolute,  and  the  instrument  takes  effect  thereupon,  dis- 
charged of  any  condition  on  which  the  delivery  was  made. 
En.  March  21,  1872. 

Cal.Rep.Cit.  55,  565  ;   137,  531. 

§  1057.  Delivery  in  escrow.  A  grant  may  be  deposited 
by  the  grantor  with  a  third  person,  to  be  delivered  on 
performance  of  a  condition,  and,  on  delivery  by  the  de- 
positary, it  will  take  effect.    While  in  the  possession  of  the 


551058-1067  TRANSFERS     IN    GENERAL.  263 

third   person,    and    subject   to   condition,   it   is    called    an 
escrow.    En.  March  21,  1872. 
Cal.Rep.Cit.  101.  240;   125,  149. 

§  1058.  Surrendering  or  canceling  grant  does  not  recon- 
vey.  Redelivering  a  grant  of  real  property  to  the  grantor, 
or  canceling  it,  does  not  operate  to  retransfer  the  title. 
En.  March  21,  1872. 

§  1059.  Constructive  delivery.  Though  a  grant  be  not 
actually  delivered  into  the  possession  of  the  grantee,  it  is 
yet  to  be  deemed  constructively  delivered  in  the  following 
cases: 

1.  Where  the  instrument  is,  by  the  agreement  of  the 
parties  at  the  time  of  execution,  understood  to  be  delivered, 
and  under  such  circumstances  that  the  grantee  is  entitled 
to  immediate  delivery;  or, 

2.  Where  it  is  delivered  to  a  stranger  for  the  benefit  of 
the  grantee,  and  his  assent  is  shown,  or  may  be  presumed. 
En.  March  21,  1872. 

Cal.Rep.Cit.   55,  565;    67.  556;   67.  557;   128,  546. 

§  1060.  Gratuitous  grants  take  effect  immediately;  ex- 
ception.    (Repealed.)     En.  March  21,  1872.    Rep.  1873-4,  225. 

ARTICLE    IV. 
INTERPRETATION    OF    GRANTS. 

5  1066.  Grants,  how  interpreted. 

§  1067.  Limitations,   how  controlled. 

§  1068.  Recitals,  when  resorted  to. 

§  1069.  Interpretation   against   grantor. 

§  1070.  Irreconcilable  provisions. 

5  1071.  Meaning  of  "heirs"  and  "issue,"  in  certain  remainders. 

5  1072.  Words  of  inheritance  unnecessary. 

§  1066.  Grants,  how  interpreted.  Grants  are  to  be  in- 
terpreted in  like  manner  with  contracts  in  general,  except 
so  far  as  is  otherwise  provided  in  this  article.  En.  March 
21,  1872. 

Cal.Rep.Cit.   103.  518;   104,  300. 

Interpretation  of  contracts:    See   post,  sees.  1636,  1641. 

§  1067.  Limitations,  how  controlled.  A  clear  and  dis- 
tinct limitation  in  a  grant  is  not  controlled  by  other  words 
less  clear  and  distinct.    En.  March  21,  1872. 

Cal.Rep.Cit.   86,   522. 


269  TRANSFERS    IN    GENERAL.  §§  1068-1083 

§  1068.  Recitals,  when  resorted  to.  If  the  operative 
words  of  a  grant  are  doubtful,  recourse  may  be  had  to  its 
recitals  to  assist  the  construction.    En.  March  21,  1872, 

§  1069.  Interpretation  against  grantor.  A  grant  is  to 
be  interpreted  in  favor  of  the  grantee,  except  that  a  reser- 
vation in  any  grant,  and  every  grant  by  a  public  oflScer  or 
body,  as  such,  to  a  private  party  is  to  be  interpreted  in 
favor  of  the  grantor.     En.  March  21,.  1872. 

Cal.Rep.Cit.     83,     63;      94.  203;   108,     44;   118,  175;   128,  288; 
138,  586. 

§  1070.  Irreconcilable  provisions.  If  several  parts  of  a 
grant  are  absolutely  irreconcilable,  the  former  part  pre- 
vails.    En.  March  21,  1872. 

Cal.Rep.Cit.  94,  203;   103,  518;   104,  300, 

§  1071.  Meaning  of  "  heirs  "  and  "  issue,"  In  certain  re- 
mainders. Where  a  future  interest  is  limited  by  a  grant 
to  take  effect  on  the  death  of  any  person  without  heirs,  or 
heirs  of  his  body,  or  without  issue,  or  in  equivalent  words, 
such  words  must  be  taken  to  mean  successors,  or  issue 
living  at  the  death  of  the  person  named  as  ancestor.  En. 
March  21,  1872. 

§  1072.  Words  of  inheritance  unnecessary.  Words  of 
inheritance  or  succession  are  not  requisite  to  transfer  a 
fee  in  real  property.    En.  March  21,  1872. 

Cal.Rep.Cit.  68,  561;   91,  81;   104,  301;   138,  586. 

A  fee-simple  is  presumed  to  be  intended  to  be  conveyed, 
unless  the  contrary  appears  from  the  grant:  See  post, 
sec.  1105. 

Devise  of  fee. — Word  "heirs"  not  necessary:  See  post, 
sec.  1329. 

What  estate  a  fee-    See  ante,  sec.  762, 


ARTICLE    V. 

EFFECT    OP    TRANSFER. 

f  1083.     What  title  passes. 

§  1084.      Incidents. 

§  1085.     Grant  may  inure  to  benefit  of  stranger. 

§  1083.     What  title  passes.     A  transfer  vests  in  the  trans- 
feree all  the  actual  title  to  the  thing  transferred  which  the 


5§  10S4-1091  TRANSFER    OF    REAL    PROPERTY,  270 

transferrer   then   has   unless   a   different   intention   is   ex- 
pressed or  is  necessarily  implied.     En.  March  21,  1872. 
Cal.Rep.Clt.   92,  524. 

§  1084.  Incidents.  The  transfer  of  a  thing  transfers 
also  all  its  incidents,  unless  expressly  excepted;  but  the 
transfer  of  an  incident  to  a  thing  does  not  transfer  the 
thing  itself.     En.  March  21,  1872. 

Cal.Rep.Cit.      69,221;      80,313;      92,  524  ;   104,     12 ;   120,  490 ; 
120,  493;    138,  411. 

What  pass:    See   post,  sees.  1104,  3540. 

§  1085.     Grant    may    inure    to    benefit    of    stranger.      A 

present  interest,  and  the  benefit  of  a  condition  or  covenant 
respecting  property,  may  be  taken  by  any  natural  person 
under  a  grant,  although  not  named  a  party  thereto.  En. 
March  21,  1872. 


CHAPTER    II. 

TRANSFER  OF  REAL  PROPERTY. 

Article   L      Mode   of   Transfer,   §§  1091-1095. 
II.     Effect  of  Transfer,  §§  1104-1115. 

ARTICLE    I. 
MODE    OF    TRANSFER. 

5  1091.     Requisites  for  transfer  of  certain  estates. 
§  1092.      Form  of  grant. 

§  3  093.      Grant  by  married  women,  how  acknowledged. 
§  1094.     Power   of   attorney   of   married   woman    and   how   acknowl- 
edged. 
S  1095.     Attorney  in  fact,  how  must  execute  for  principal. 

§  1091.  Requisites  for  transfer  of  certain  estates.  An 
estate  in  real  property,  other  than  an  estate  at  will  or  for 
a  term  not  exceeding  one  year,  can  be  transferred  only  by 
operation  of  law,  or  by  an  instrument  in  writing,  sub- 
scribed by  the  party  disposing  of  the  same,  or  by  his 
agent  thereunto  authorized  by  writing.    En.  March  21,  1872. 

Cal.Rep.Cit.      51,260;      53,460;      55.565;      73,544;      81,207; 
101,  408;   122,  420;   130,  457;   132,  322;   134,  284. 

Transfer  of  realty:    Code  Civ.  Proc,  sees.  1971-1973. 

Requisites  of  transfer  of  real  property:  See  coi'respond- 
Ing  section  in  Code  of  Civil  Procedure,  sec.  1971.  See  fur- 
ther, post,  sec.  1624,  subd.  5. 


271  TRANSFER    OF    REAL    PROPERTY.  §§  1092-1095 

Conveyances  by  person  whose  name  changed:  See  post. 
Appendix,  title  Deeds. 

§  1092.  Form  of  grant.  A  grant  of  an  estate  in  real 
property  may  be  made  in  substance  as  follows: 

"  I,  A  B,  grant  to  C  D  all  that  real  property  situated  in 
(insert  name  of  county)  county,  state  of  California,  bounded 
(or  described)  as  follows:  (here  insert  description,  or  if 
the  land  sought  to  be  conveyed  has  a  descriptive  name,  it 
may  be  described  by  the  name,  as,  for  instance,  '  The 
Norris  Ranch.') 

"  Witness   my   hand   this    (insert   day)    day   of    (insert 

month),  IS—.  "AB." 

En.  March  21,  1872. 

Cal.Rep.Cit.     67,  539;     72,     82;     83,  193;     91,     81;   105,  183; 
120,  315;    122,  420. 

See  act  of  March  11,  1874,  as  to  conveyances  by  person 
who  has  changed  his  or  her  name.  Appendix,  title  Deeds. 

§  1093.     Grant    by    married    women,    how    acknowledged. 

A  grant  or  conveyance  of  real  property  made  by  a  married 

woman  may  be  made,  executed,  and  acknowledged  in  the 

same   manner   and   has   the    same   effect   as   if   she   were 

unmarried.    En.  March  21,  1872,    Am'd.  1895,  53. 

Cal.Rep.Cit.     53,460;      55,     56;     55,565;     59,513;      68,140; 
74,350;      80,     67;      83,536;      83,537;      91,607;      91,610; 
102,  207;   122,  349;   123,  494;   123,  495;   123,  497. 

Conveyance  by  married  women:    See  post,  sec.  1187. 

§  1094.  Power  of  attorney  of  married  woman  and  how 
acknowledged.  A  married  woman  may  make,  execute, 
and  revoke  powers  of  attorney  for  the  sale,  conveyance, 
or  incumbrance  of  her  real  or  personal  estate,  which  shall 
have  the  same  effect  as  if  she  were  unmarried,  and  may 
be  acknowledged  in  the  same  manner  as  a  grant  of  real 
property.     En.  March  21,  1872.     Am'd.  1895,  39. 

Cal.Rep.Cit.  55,  565. 

§  1095.  Attorney  in  fact,  how  must  execute  for  prin' 
cipal.  When  an  attorney  in  fact  executes  an  instrument 
transferring  an  estate  in  real  property,  he  must  subscribe 
the  name  of  his  principal  to  it,  and  his  own  name  aa 
attorney  in  fact.    En.  March  21,  1872. 


SS  1104-1106  TRANSFER    OP    REAL    PROPERTY.  272 

ARTICLE    II. 

EFFECT    OP    TRANSFER. 

S  1104.  What  easements  pass  with  property. 

S  1105.  When  fee  simple  title  Is  presumed  to  pass. 

§  1106.  Subsequently  acquired  title  passes  by  operation  ot  law. 

§   1107.  Grant,  how  far  conclusive  on  purchasers. 

9  1108.  Conveyances  by  owner  for  life  or  for  years. 

§   1109.  Grant  made  on  condition  subsequent. 

I  1110.  Grants  on  condition,  when  absolute. 

S  1111.  Grant  of  rents,  reversions,  and  remainders. 

S   1112.  Boundary  by  highway,  what  passes. 

I  1113.  Implied  covenants. 

§  1114.  What  the  term   "incumbrances"  embraces. 

I  1115.  Lineal  and  collateral   warranties  abolished. 

§  1104.  What  easements  pass  with  property.  A  trans- 
fer of  real  property  passes  all  easeraents  attached  thereto, 
and  creates  in  favor  thereof  an  easement  to  use  other  real 
property  of  the  person  whose  estate  is  transferred  in  the 
same  manner  and  to  the  same  extent  as  such  property 
was  obviously  and  permanently  used  by  the  person  whose 
estate  is  transferred,  for  the  benefit  thereof,  at  the  time 
when  the  transfer  was  agreed  upon  or  completed.  En. 
March  21,  1872. 

Cal.Rep.Cit.     69,  221;     73,  554;   102,  367;   116,  698;   120,  490; 
120,  491;   120,  492;   120,  493;   138,  411;   138,  520. 

Transfer  carries  easements:  See  the  general  subject  of 
easements,  ante,  sec.  801. 

Transfer  of  a  thing  carries  its  incidents:  Ante  sec.  1084; 
post,  sec.  3540. 

§1105.     When  fee  simple  title  is  presumed  to  pass.    A 

fee  simple  title  is  presumed  to  be  intended  to  pass  by  a 

grant  of  real  property,  unless  it  appears  from  the  grant 

that  a  lesser  estate  was  intended.    En.  March  21,  1872. 

Cal.Rep.Cit.     58,     15;      68,561;     84,614;     91,     81;  103,518; 
104,  299;    105,  182. 

§  1106.  Subsequently  acquired  title  passes  by  operation 
of  law.  Where  a  person  purports  by  proper  instrument  to 
grant  real  property  in  fee  simple,  and  subsequently  acquires 
any  title,  or  claim  of  title  thereto,  the  same  passes  by 
operation  of  law  to  the  grantee,  or  his  successors.  En. 
March  21,  1872. 

Cal.Rep.Cit.     55,  565;      68,  561;     84,  614;     96,  209;   103,  110: 
138,  520. 


273  TRANSFER    OF    REAL    PROPERTY.  §§  1107-1112 

§  1107.     Grant,  how  far  conclusive  on  purchasers.     Every 

grant  of  an  estate  in  real  property  is  conclusive  against 

the  grantor,  also  against  every  one  subsequently  claiming 

under  him,   except  a  purchaser  or  incumbrancer  who  in 

good   faith   and   for   a   valuable   consideration   acquires   a 

title  or  lien  by  an  instrument  that  is  first  duly  recorded. 

En.  March  21,  1872. 

Cal.Rep.Cit.     55,  565;      55,  566;     75,  555;      75.  557;      75,  558; 
97.  583;   109,     49;   113.  158;   113.  159;   120.  490;   122,  513; 
126.  604. 

§  1108.  Conveyances  by  owner  for  life  or  for  years. 
A  grant  made  by  the  owner  of  an  estate  for  life  or  years, 
purporting  to  transfer  a  greater  estate  than  he  could 
lawfully  transfer,  does  not  work  a  forfeiture  of  his  estate, 
but  passes  to  the  grantee  all  the  estate  which  the  grantor 
could  lawfully  transfer.    En.  March  21,  1872. 

§  1109.  Grant  made  on  condition  subsequent.  Where  a 
grant  is  made  upon  condition  subsequent,  and  is  subse- 
quently defeated  by  the  nonperformance  of  the  condition, 
the  person  otherwise  entitled  to  hold  under  the  grant 
must  reconvey  the  property  to  the  grantor  or  his  successors, 
by  grant,  duly  acknowledged  for  record.  En.  March  21, 
1872. 

Cal.Rep.Cit.  56,  248  ;   58,  73  ;   86,  592  ;   97,  657  ;   128.  291. 

Conditions:     See  sees.  707  et  seq. 

§  1110.  Grants  on  condition,  when  absolute.  An  instru- 
ment purporting  to  be  a  grant  of  real  property,  to  take 
effect  upon  condition  precedent,  passes  the  estate  upon  the 
performance  of  the  condition.  En.  March  21,  1872.  Am'd. 
1873-4,  225. 

Cal.Rep.Cit.  55,   565. 

§  1111.  Grant  of  rents,  reversions,  and  remainders. 
Grants  of  rents  or  of  reversions  or  of  remainders  are  good 
and  effectual  without  attornments  of  the  tenants;  but  no 
tenant  who,  before  notice  of  the  grant,  shall  have  paid 
rent  to  the  grantor,  must  suffer  any  damage  thereby.  En. 
March  21,  1872. 

Cal.Rep.Cit.   79,   443;   82,  626;   97,  294. 

Grantee's  or  devisee's  right  to  rents:    See   ante,  sec.  821. 

§  1112.  Boundary  by  highway,  what  passes.  A  transfer 
of  land,  bounded   by  a  highway,   passes   the   title  of  the 


SS  1113-1115  TRANSFER    OF    REAL    PROPERTY.  274 

person  whose  estate  is  transferred  to  the  soil  of  the  high- 
way in  front  to  the  center  thereof,  unless  a  different  intent 
appears  from  the  grant.  En.  March  21,  1872.  Am'd.  1873-4, 
225. 

Cal.Rep.Cit.  69,  206;   70,  540;   95,  665;   104,  188;   131,  99. 

Highway  as  boundary:    See  ante,  sec.  831. 

§  1113.  Implied  covenants.  From  the  use  of  the  word 
"  grant "  in  any  conveyance  by  which  an  estate  of  in- 
heritance or  fee  simple  is  to  be  passed,  the  following 
covenants,  and  none  other,  on  the  part  of  the  grantor  for 
himself  and  his  heirs  to  the  grantee,  his  heirs,  and  assigns, 
are  implied,  unless  restrained  by  express  terms  contained 
in  such  conveyance: 

1.  That  previous  to  the  time  of  the  execution  of  such 
conveyance,  the  grantor  has  not  conveyed  the  same  estate, 
or  any  right,  title,  or  interest  therein,  to  any  person  other 
than  the  grantee; 

2.  That  such  estate  is  at  the  time  of  the  execution  of 
such  conveyance  free  from  incumbrances  done,  made,  or 
suffered  by  the  grantor,  or  any  person  claiming  under  him. 

Such  covenants  may  be  sued  vipon  in  the  same  manner 

as  if  they  had  been  expressly  inserted  in  the  conveyance. 

En.  March  21,  1872. 

Cal.Rep.Cit.      56,  619;      74,  267;   109,  424;   113,  352;   131,  111; 
133,  456;   133,  458.       Subd.   1—134,  418.       Subd.   2—119,  294; 

Covenants  running  with  land:    See   post,  sees.  1460-1467. 
The  "usual  covenants":     See   post,  sec.  1733. 

§  1114.  What  the  term  "  incumbrances  "  embraces.  The 
term  "  incumbrances  "  includes  taxes,  assessments,  and  all 
liens  upon  real  property.  En.  March  21,  1872.  Am'd. 
1873-4,  225. 

Cal.Rep.Cit.  106,  446. 

§  1115.  Lineal  and  collateral  warranties  abolished.  Lin- 
eal and  collateral  warranties,  with  all  their  incidents,  are 
abolished;  but  the  heirs  and  devisees  of  every  person  who 
has  made  any  covenant  or  agreement  in  reference  to  the 
title  of,  in,  or  to  any  real  property,  are  answerable  upon 
such  covenant  or  agreement  to  the  extent  of  the  land 
descended  or  devised  to  them,  in  the  cases  and  in  the 
manner  prescribed  by  law.    En.  March  21,  1872. 


275  TRANSFER    OP    PERSONAL    PROPERTY.  §§  1135-1140 

CHAPTER    III. 

TRANSFER  OF  PERSONAL  PROPERTY. 

Article  I.     Mode  of  Transfer,   §§  1135-1136. 

II.     What  Operates  as   a  Transfer,   §§  1140-1142, 
111.      Gifts.   §§  1146-1153. 

ARTICLE    I. 
MODE    OF    TRANSFER. 

5  1135.     When  must  be  in  writing. 
§  1136.     Transfer  by  sale,  etc. 

§  1135.  When  must  be  in  writing.  An  interest  in  a  ship, 
or  in  an  existing  trust,  can  be  transferred  only  by  operation 
of  law,  or  by  a  written  instrument,  subscribed  by  the 
person  malting  the  transfer,  or  by  his  agent.  En.  March 
21,  .1872. 

Cal.Rep.Cit.   55,   565. 

Transfer  of  ship:    See  post,  sec.  3440. 

§  1136.  Transfer  by  sale,  etc.  The  mode  of  transferring 
other  personal  property  by  sale  is  regulated  by  the  title  on 
that  subject,  in  division  third  of  this  code.  En.  March  21, 
1872. 

Transfer  of  obligations:     See  sees.  1457  et  seq. 

Sales  of  property  generally:     See  post,  sees.  1721  et  seq. 

ARTICLE    II. 

WHAT    OPERATES    AS    A    TRANSFER, 

5  1140.     Transfer  of  title  under  sale. 

§  1141.     Transfer  of  title  under  executory  agreement  for  sale. 

§  1142.     When  buyer  acquires  better  title  than  seller  has. 

§  1140.  Transfer  cf  title  under  sale.  The  title  to  per- 
sonal property  sold  or  exchanged,  passes  to  the  buyer 
whenever  the  parties  agree  upon  a  present  transfer,  and 
the  thing  itself  is  identified,  whether  it  is  separated  from 
other  things  or  not.    En.  March  21,  1872. 

Cal.Rep.Cit.   76,  218;   86,  463;  107.  357., 

Validity  of  sale  of  personal  property:  See  post,  sees. 
1739  et  seq;  and  post,  sec.  1624. 

Delivery:     See  sees.  1753  et  seq.,  and  ante,  sec.  1054. 

Agreement  to  sell  and  buy  defined:     See  post.  sec.  1729. 


§§  1141-1147  TRANSFER    OF    PERSONAL    PROPERTY.  276 

§  1141.  Transfer  of  title  under  executory  agreement  for 
sale.  Title  is  transferred  by  an  executory  agreement  for  the 
sale  or  exchange  of  personal  property  only  when  the  buyer 
has  accepted  the  thing,  or  when  the  seller  has  completed 
it,  prepared  it  for  delivery,  and  offered  it  to  the  buyer, 
with  intent  to  transfer  the  title  thereto,  in  the  manner 
prescribed  by  the  chapter  upon  offer  of  performance.  En. 
March  21,  1872. 

Cal.Rep.Cit.   63,  576;   77,  144;   93,  534. 

Offer  of  performance:     See  post,  sees.  1485  et  seq. 

§  1142.  When  buyer  acquires  better  title  than  seller  has. 
Where  the  possession  of  personal  property,  together  with 
a  power  to  dispose  thereof,  is  transferred  by  its  owner 
to  another  person,  an  executed  sale  by  the  latter,  while 
in  possession,  to  a  buyer  in  good  faith  and  in  the  ordinary 
course  of  business,  for  value,  transfers  to  such  buyer  the 
title  of  the  former  owner,  though  he  may  be  entitled  to 
rescind,  and  does  rescind,  the  transfer  made  by  him.  En. 
March  21,  1872. 

Cal.Rep.Cit.   123,   632. 

Sales  by  factor:     See  post,  sec.  2369. 


ARTICLE    III. 

GIFTS. 

§  1146.  Gifts  defined. 

§  1147.  Gift,  how  made. 

§  1148.  Gift  not  revocable. 

§  1149.  Gift  in  view  of  death,  what. 

§  1150.  When  gift  presumed  to  be  in  view  of  death. 

§  1151.  Revocation  of  gift  in  view  of  death. 

§  1152.  Effect  of  will  upon  gift. 

§  1153.  When  treated  as  legacy. 

§  1146.  Gifts  defined.  A  gift  is  a  transfer  of  personal 
property,  made  voluntarily,  and  without  consideration.  En. 
March  21,  1872. 

Cal.Rep.Cit.     83,  265;     99.     21;  121.  678;   126,  534;   131,     66; 
134,  605;   138,  170.  . 

§  1147.  Gift,  how  made.  A  verbal  gift  is  not  valid,  un- 
less the  means  of  obtaining  possession  and  control  of  the 
thing  are  given,  nor,  if  it  is  capable  of  delivery,  unless 


277  TRANSFER     OF    PERSONAL    PROPERTY.  §§   1148-1153 

there  is  an  actual  or  symbolical  delivery  of  the  thing  to 

the  donee.     En.  March  21,  1872. 

Cal.Rep.Cit.  106,  657;  113,  497;   121,  429;   121,  679;   131,     66; 
138,  170. 

§  1148.  Gift  not  revocable.  A  gift,  other  than  a  gift  in 
view  of  death,  cannot  be  revoked  by  the  giver.  En.  March 
21,  1872. 

Revoking  gifts  mortis  causa:     Sec.  1151,  infra. 

§1149.  Gift  in  view  of  death,  what.  A  gift  in  view  of 
death  is  one  which  is  made  in  contemplation,  fear  or  peril 
of  death,  and  with  intent  that  it  shall  take  effect  only  in 
case  of  the  death  of  the  giver.     En.  March  21,  1872. 

Cal.Rep.Cit.   105,   147. 

Revoking  gift  in  view  of  death:     See  sec.  1151,  infra. 

§  1150.  When  gift  presumed  to  be  in  view  of  death.  A 
gift  made  during  the  last  illness  of  the  giver,  or  under  cir- 
cumstances which  would  naturally  impress  him  with  an 
expectation  of  speedy  death,  is  presumed  to  be  a  gift  in 
view  of  death.    En.  March  21,  1872. 

Cal.Rep.Cit.   121,   677. 

§  1151.  Revocation  of  gift  in  view  of  death.  A  gift  in 
view  of  death  may  be  revoked  by  the  giver  at  any  time, 
and  is  revoked  by  his  recovery  fi-om  the  illness,  or  escape 
from  the  peril,  under  the  presence  of  which  it  was  made, 
or  by  the  occurrence  of  any  event  which  would  operate 
as  a  revocation  of  a  will  made  at  the  same  time,  but  when 
the  gift  has  been  delivered  to  the  donee,  the  rights  of  a 
bona  fide  purchaser  from  the  donee  before  the  revocation, 
shall  not  be  affected  by  the  revocation.  En.  March  21, 
1872.     Am'd.  1873-4,  226. 

Cal.Rep.Cit.   99,  315  ;   132,  166. 

Gift  inter  vivos  not  revocable:     See  sec.  1148,  supra. 

§  1152.  Effect  of  will  upon  gift.  A  gift  in  view  of  death 
is  not  affected  by  a  previous  will;  nor  by  a  subsequent  will, 
unless  it  expresses  an  intention  to  revoke  the  gift.  En. 
March  21,  1872. 

Cal.Rep.Cit.  132,   166. 

§  1153.  When  treated  as  legacy.  A  gift  in  view  of  death 
must  be  treated  as  a  legacy,  so  far  as  relates  only  to  the 
creditors  of  the  giver.    En.  March  21,  1872. 


!§  1158,  1159  RECOIIDING    TRANSFERS.  278 

CHAPTER    IV. 

RECORDING    TRANSFERS. 

Article  I.     What  may  be  Recorded,  §§1158-1165. 
II.     Mode  of  Recording,   §§  1169-1173. 

III.  Proof    and    Acknowledgments    of    Instruments,    §§  1180- 

1207. 

IV.  Effect  of  Recording  or  of  the  Want  Thereof,  §§  1213-1217. 

ARTICLE    I. 

WHAT     MAY    BE    RECORDED. 

§  1*58.  What  may  be  recorded. 

§  1159.  Judgments  may  be  recorded   without   acknowledgment! 

§  1160.  Letters   patent   may   be    recorded   without    acknowledgment. 

§  1161.  Instruments  must  be   acknowledged,   except,   etc. 

§  1162.  Same. 

§  1163.  Instruments   executed   under   power   of   attorney   not   to   be 

recorded  until  power  is  flled.     (Repealed.) 

§  1164.  Transfers  in  trust,  etc. 

§  1165.  Fees  of  recorder  to  be  indorsed. 

§  1158.  What  may  be  recorded.  Any  instrument  or 
judgment  affecting  the  title  to  or  possession  of  real  prop- 
erty may  be  recorded  under  this  chapter.  En.  March  21, 
1872. 

Cal.Rep.Cit.     55,  565;     55,  566;     67,     58;     76,  140;   108.  256; 
108,  549. 

Recording  of  conveyance  by  one  whose  name  changed: 
See  post,  Appendix,  title  Deeds. 

Compare  with  section  1215,  as  indicating  what  may  be 
recorded. 

Place  of  recording:     See  post,  sec.  1169. 

Execution  of  instrument  and  acknowledgment  to  entitle 
to  be  recorded:     See  sec.  1161,  infra,  and  sees.  1180  et  seq. 

Bona  fide  purchasers  without  notice  whose  deeds  are 
first  recorded  take  precedence  over  prior  grantee:  Ante, 
sec.  1107;  post,  sec.  1214. 

Recorders:     See  Pol.  Code,  sees.  4235  et  seq. 

Instrument,  when  deemed  recorded:     See  post,  sec.  1170. 

Effect  of  recording,  or  want  thereof:  See  post,  sees. 
1213  et  seq. 

§  1159.  Judgments  may  be  recorded  without  acknowl- 
edgment. Judgments  affecting  the  title  to  or  possession 
of  real  property  authenticated  by  the  certificate  of  the 
clerk  of  the  court  in  which  such  judgments  were  rendered 


279  RECORDING     TRANSFERS.  §§  1160,  1161 

(and  notices  of  location  of  mining  claims),  may  be  recorded 
without  acknowledgment,  certificate  of  acknowledgment, 
or  further  proof.  The  record  of  all  notices  of  location  of 
mining  claims  heretofore  made  in  the  proper  office  with- 
out acknowledgment,  or  certificate  of  acknowledgment,  or 
other  proof  shall  have  the  same  force  and  effect  for  all 
purposes  as  if  the  same  had  been  duly  acknowledged,  or 
proved  and  certified  as  required  by  law.  Afiidavits  show- 
ing work  or  posting  of  notices  upon  mining  claims  may 
also  be  recorded  in  the  recorder's  ofiice  of  the  county, 
where  such  mining  claims  are  situated.  En.  Marcn  21. 
1S72.  Am'd.  1897,  9?! 
Cal.Rep.Cit.   129,   363. 

Recorder  must  file  judgments:     Pol.  Code,  sec.  4238. 

§  1160.  Letters  patent  may  be  recorded  without  ac- 
knowledgment. Letters  patent  from  the  United  States  or 
from  the  state  of  California,  executed  and  authenticated 
pursuant  to  existing  law,  may  be  recorded  without  ac- 
knowledgment or  further  proof,  and  where  letters  patent 
have  been  lost,  or  are  beyond  the  control  of  any  party 
deraigning  title  therefrom,  or  for  any  reason  they  remain 
unrecorded,  any  person  claiming  title  thereunder  may  cause 
a  transcript  of  the  copy  of  such  letters  patent  kept  by  the 
government  issuing  the  same,  duly  certified  by  the  ofiicer 
or  individual  having  lawful  custody  of  such  copy,  to  be 
recorded  in  lieu  of  the  original;  and  such  recorded  copy 
shall  have  prima  facie  the  same  force  and  effect  as  the 
original,  for  title  or  for  evidence,  until  said  original  letters 
patent  be  recorded.    En.  March  21,  1872.    Am'd.  1877-8,  85. 

Cal.Rep.Cit.  84,  569. 

§  1161.  Instruments  must  be  acknowledged,  except,  etc. 
Before  an  instrument  can  be  recorded,  unless  it  be- 
longs to  the  class  provided  for  in  either  sections  eleven 
hundred  and  fifty-nine,  eleven  hundred  and  sixty,  twelve 
hundred  and  two,  or  twelve  hundred  and  three,  its  execu- 
tion must  be  acknowledged  by  the  person  executing  it,  or 
if  executed  by  a  corporation,  by  its  president  or  secretary, 
or  proved  by  a  subscribing  witness,  or  as  provided  in  sec- 
tions eleven  hundred  and  ninety-eight  and  eleven  hundred 
and  nirvety-nine,  and  the  acknowledgment  or  proof  certified 


i§  1162-1165  RECORDING    TRANSFERS.  280 

In  the  manner  prescribed  by  article  HI  of  this  chapter. 

En.  March  21,  1872.     Am'd.  1873-4,  226. 

Cal.Rep.Cit.   55,  565  ;   56,  129  ;   74,  429  ;   90,  477. 

§  1162.  Same.  An  instrument,  proved  and  certified  pur- 
suant to  sections  1198  and  1199,  may  be  recorded  in  the 
proper  oflBce  if  the  original  is  at  the  same  time  deposited 
therein  to  remain  for  public  inspection,  but  not  otherwise. 
En.  March  21,  1872. 

Cal.Rep.Cit.   55,   565. 

§  1163.  Instruments  executed  under  power  of  attorney 
not  to  be  recorded  until  power  is  filed.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  226. 

§•1164.     Transfers  in  trust,  etc.     Transfers  of  property  lu 

trust  for  the  benefit  of  creditors,  and  transfers  or  liens 
on  property  by  way  of  mortgage,  are  required  to  be  re- 
corded in  the  cases  specified  in  the  titles  on  the  special 
relation  of  debtor  and  creditor,  and  the  chapter  on  mort- 
gages respectively.  En.  March  21,  1872. 
Cal.Rep.Cit.   108,   256. 

Special  relations  of  debtor  and  creditor:  See  post,  sees. 
3429  et  seq. 

Mortgages:     See  sees.  2920  et  seq. 

§1165.     Fees  of  recorder  to  be  indorsed.     The  recorder 

must  in  all  cases  indorse  the  amount  of  his  fee  for  recor- 
dation on  the  instrument  recorded.     En.  Stats.  1873-4,  274. 

Cal.Rep.Cit.   55,   565. 

Recorders:     Pol.  Code,  sees.  4235  et  seq. 


281  RECORDING    TRANSFERS,  §§  11G9-1173 

ARTICLE    II. 
MODE    OP    RECORDING. 

§  1169.  In  ■what  ofiBce. 

I  1170.  Instrument,  when  deemed  recorded. 

§  1171.  Books  of  record. 

§  1172.  Duties  of  recorder. 

I  1173.  Transfer  of  vessels, 

§  1169.  In  what  office.  Instruments  entitled  to  be  re- 
corded must  be  recorded  by  the  county  recorder  of  the 
county  in  which  the  real  property  affected  thereby  is  sit- 
uated.    En.  March  21,  1872. 

Cal.Rep.Cit.  103,  111. 

§  1170.  Instrument,  when  deemed  recorded.  An  instru- 
ment is  deemed  to  be  recorded,  when,  being  duly  acknowl- 
edged or  proved,  and  certified,  it  is  deposited  in  the  re- 
corder's office  with  the  proper  officer  for  record.  En.  March 
21,  1872.     Am'd.  1873-4,  226, 

Cal.Rep.Cit.      55,565;      57,401;      67,     58;      90,477;      93,399; 
102,  498;   104,  400;   121,  256;   131,  555;   131,  556t  131,  557. 

Recording:  See,  for  general  consideration  ol  tne  sub- 
ject, ante,  sec.  1158. 

§  1171.  Books  of  record.  Grants,  absolute  in  terms,  are 
to  be  recorded  in  one  set  of  books,  and  mortgages  in  an- 
other.    En.  March  21,  1872. 

Cal.Rep.Cit.  124,  47 ;  131,  558. 

§  1172.  Duties  of  recorder.  The  duties  of  county  re- 
corders, in  respect  to  recording  instruments,  are  prescribed 
by  the  Political  Code,     En,  March  21,  1872. 

Cal.Rep.Cit.  55,   565. 

Recorders:     See  Pol.  Code,  sees.  4235  et  seq. 

§  1173.  Transfer  of  vessels.  The  mode  of  recording 
transfers  of  ships  registered  under  the  laws  of  the  United 
States  is  regulated  by  acts  of  congress.  En.  March  21, 
1872. 

See  U.  S,  Rev.  Stats.,  sees.  4131  et  seq. 


J5 1180-1181 


RECORDING    TRANSFERS. 


282 


ARTICLE    III. 
PROOF    AND    ACKNOWLEDGMENT    OF    INSTRUMENTS. 


5  1180. 
§  1181, 
§  1182. 
§  1183. 
§  1184. 
§  1185, 
§  1186. 
§  1187, 
§  1188. 
§  1189. 
§  1190. 
§  1191. 

5  1192. 
§  1193 
§  1194, 
§  1195. 
§  1196. 
§  1197. 
§  1198. 
§  1199, 
§  1200, 
§  1201, 
§  1202. 

§  1203. 

§  1204. 
§  1205. 

§  1206. 
§  1207. 

§1180.  By  whom  acknowledgments  may  be  taken  in 
this  state.  The  proof  'or  acknowledgment  of  an  instru- 
ment may  be  made  at  any  place  within  this  state  before  a 
justice  or  clerk  of  the  supreme  court  or  judge  of  a  superior 
court.     En.  March  21,  1872.     Am'd.  1880,  2. 

Cal.Rep.Cit.   55,   565. 

Act  legalizing  defective  acknowledgments:  See  post, 
Appendix,  title  Acknowledgments;  see,  also,  sec.  1307,  in- 
fra. 

Act  to  legalize  acknowledgments  taken  by  court  com- 
missioners:     See  post,  Appendix,  title  Acknowledgments, 

§  1181.  Same.  The  proof  or  acknowledgment  of  an  in- 
strument may  be  made  in  this  state,  within  the  city,  city 
and  county,  county,  or  district  for  which  the  officer  was 
elected  or  appointed,  before  either: 


By  'wbom  acknowledgments  may  be  taken  in  this  state. 

Same. 

By  whom  taken  without  the  state. 

Proof  of,  outside  United   States. 

Deputy  can  take  acknowledgment. 

Requisites  for  acknowledgment. 

Acknowledgment  by  married  women.      (Repealea.) 

Conveyance  by  married  woman. 

Officer  must  indorse  certificate. 

General  form  of  certificate.     Taken  outside  of  state. 

Form  of  acknowledgment  by  corporation. 

Form  of  certificate  of  acknowledgment  by  married  women. 
(Repealed.) 

Form  of  certificate  of  acknowledgment  by  attorney  In  fact. 
Officers  must  affix  their  signatures. 

Certificate  of  authority  of  justices  in  certain  cases. 

Proof  of  execution,   how  made. 

Witness  must  be  personally  known  to  officer. 

Witness  must  prove,  what. 

Handwriting  may  be  proved,  when. 

Evidence  of  handwriting  must  prove,  what. 

Certificate  of  proof. 

Officers  authorized  to  do  certain  things. 

When  instrument  is  improperly  certified,  party  may  have 
at:tion  to  correct  error. 

In  certain  cases  parties  Interested  may  obtain  judgment 
of  proof  of  an   instrument. 

Effect  of  judgment  in  such  action. 

Conveyances  heretofore  made  to  be  governed  by  then  ex- 
isting laws. 

Recording  to  be  governed  by  then  exirting  laws. 

Validating  defective  certificates  of  acknowledgment. 


283  RECORDING    TRANSFERS.  §§  1182,  1183 

1.  A  clerk  of  a  court  of  record;  or, 

2.  A  county  recorder;  or, 

3.  A  court  commissioner;  or, 

4.  A  notary  public;  or, 

5.  A  justice  of  tlie  peace.  En.  March  21,  1872.  Am'd. 
1880,  2;  1891,  214. 

Cal.Rep.Cit.   55,  565;     64,  269;   90.  478;   104,  682;   130,  447. 
Act  to  legalize  acknowledgments  taken  by  court  com- 
missioners:     See  post,  Appendix,  title  Acknowledgments. 
Acknowledgment  by  deputy:     See  post,  sec.  1184. 

§  1182.  By  whom  taken  without  the  state.  The  proof 
or  acknowledgment  of  an  instrument  may  be  made  with- 
out this  state,  but  within  the  United  States,  and  within  the 
jurisdiction  of  the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  the 
United  States;  or, 

2.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any 
state;  or, 

3.  A  commissioner  appointed  by  the  governor  of  this 
state  for  that  purpose;   or, 

4.  A  notary  public;  or, 

5.  Any  other  officer  of  the  state  where  the  acknowledg- 
ment is  made  authorized  by  its  laws  to  take  such  proof  or 
acknowledgment.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,  565. 

§  1183.  Proof  of,  outside  United  States.  The  proof  or 
acknowledgment  of  an  instrument  may  be  made  without 
the  United  States,  before  either: 

1.  A  minister,  commissioner,  or  charge  d'affaires  of  the 
United  States,  resident  and  accredited  in  the  country  where 
the  proof  or  acknowledgment  is  made;   or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United 
States,  resident  in  the  country  where  the  proof  or  acknowl- 
edgment is  made;  or, 

3.  A  judge  of  a  court  of  record  of  the  country  where  the 
proof  or  acknowledgment  is  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the 
governor  of  the  state,  pursuant  to  special  statutes;  or, 


§§  11S4-11SS  RECORDING    TRANSFERS.  284 

5.  A  notary  public.  En.  March  21,  1872.  Am'd.  1873-4, 
227. 

Cal.Rep.Cit.  55,  565  ;   110,  245. 

§  1184.  Deputy  can  take  acknowledgment.  When  any 
of  the  officers  mentioned  in  the  four  preceding  sections  are 
authorized  by  law  to  appoint  a  deputy,  the  acknowledg- 
ment or  proof  may  be  taken  by  such  deputy,  in  the  name 
of  his  principal.    En.  March  21,  1872. 

§  1185.  Requisites  for  acknowledgment.  The  acknowl- 
edgment of  an  instrument  must  not  be  taken,  unless  the 
officer  taking  it  knows,  or  has  satisfactory  evidence,  on 
the  oath  or  affirmation  of  a  credible  witness,  that  the  per- 
son making  such  acknowledgment  is  the  individual  who  is 
described  in  and  who  executed  the  instrument;  or,  if  exe- 
cuted by  a  corporation,  that  the  person  making  such 
acknowledgment  is  the  president  or  secretary  of  such  cor- 
poration.   En.  March  21,  1872. 

Cal.Rep.Cit.   55,  565;   96,  651;   97,  212;   101,  539;   131,  507. 

Acknov/ledgments  of  married  women:  See  pose,  sec. 
1187. 

The  official  character  of  the  certifying  officer  should 
appear  from  the  certificate:     Post,  sec.  1188. 

Authentication  of  signature:     See  post,  sec.  1193. 

Correcting  certificate:     See  post,  sec.  1202. 

§  1186.  Acknowledgment  by  married  women.  (Re- 
pealed.)    En.  March  21,  1872.     Rep.  1891,  137. 


Cal.Rep.Cit.  55,  56;  55,565 

65,  330;   68,  140;  74,  346 

74,  350;   76,  529;  76,  530 

98,  148;  101,  535;  101,  539 

123,  493;  123,  494. 


59,  513 

74,  347 

SO,   67 

102,  207 


60,  360 

74,  348 

83,  536 

113,  139 


63,  288; 

74,  349; 

91,  607; 

122,  349: 


§  1187.  Conveyance  by  married  woman.  A  conveyance 
by  a  married  woman  has  the  same  effect  as  if  she  were 
unmarried,  and  may  be  acknowledged  in  the  same  man- 
ner.    En.  March  21,  1872.     Am'd.  1891,  137. 

Cal.Rep.Cit.      55,     59;      59,  513;      60,  360;      68,  140;      74,  349; 
74,  434;      83,  272;      91,  607;      91,  610;   101,  535;   123,  493; 
123,  494;  123,  495;  131,  160. 

§  1188.  Officer  must  Indorse  certificate.  An  officer  tak- 
ing the  acknowledgment  of  an  instrument  must  indorse 
thereon,  or  attach  thereto,  a  certificate  substantially  in  the 


285  RECORDING    TRANSFERS.  §§  11S9,  119() 

forms  hereinafter  prescribed.  En.  March  21,  1S72.  Arn'd. 
1873-4,  227. 

Cal.Rep.Cit.  55,  5C5  ;    90,  478;   91,  610. 

§  1189.  General  form  of  certificate.  Taken  outside  of 
state.  The  certificate  of  acknowledgment,  unless  it  is 
otherwise  in  this  article  provided,  must  be  substantially  in 

the  following  form:     "State  of ,  county  of , 

ss.    On  this day  of ,  in  the  year , 

before  me   (here  insert  name  and  quality  of  the  officer), 

personally  appeared  ,  known  to  me  (or  proved  to 

me  on  the  oath  of )  to  be  the  person  whose  name 

is  subscribed  to  the  within  instrument,  and  acknowledged 
that  he  (she  or  they)  executed  the  same."  Provided,  how- 
ever, that  any  acknowledgment  taken  without  this  state  in 
accordance  with  the  laws  of  the  place  where  the  acknowl- 
edgment is  made,  shall  be  sufficient  in  this  state;  and 
provided  further,  that  the  certificate  of  the  clerk  of  a  court 
of  record  of  the  county  or  district  where  such  acknowledg- 
ment is  taken,  that  the  officer  certifying  to  the  same  is 
authorized  by  law  so  to  do,  and  that  the  signature  of  the 
said  officer  to  such  certificate  is  his  true  and  genuine 
signature,  and  that  such  acknowledgment  is  taken  in 
accordance  with  the  laws  of  the  place  where  the  same  is 
made,  shall  be  prima  facie  evidence  of  the  facts  stated 
in  the  certificate  of  said  clerk.  En.  March  21,  1872.  Am'd. 
1891,  137;   1897,  43. 

Cal.Rep.Cit.  90,  478;   98,  468;   101,  539;   130,  125;   131,  508. 

§  1190.  Form  of  aclcnowledgment  by  corporation.  The 
certificate  of  acknowledgment  of  an  instrument  executed 
by  a  corporation  must  be  substantially  in  the  following 
form: 

State  of  — ■■ ,  i 

County  of  ,  \  ^^' 

On  this  day  of ,  in  the  year ,  before 

me  [here  insert  the  name  and  quality  of  the  officer],  per- 
sonally appeared, ,  known  to  me  [or  proved  to  me  on 

the  oath  of ]  to  be  the  president  [  or  the  secretary]  of 

the  corporation  that  executed  the  within  instrument,  and 
acknowledged  to  me  that  such  corporation  executed  the 
same.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,  565  ;   101,  539. 


§§  1191-1194  RECORDING    TRANSFERS.  286 

§  1191.  Form  of  certificate  of  acknowledgment  by  mar- 
ried women.  (Repealed.)  En.  Jilarch  21,  1872.  Rep.  1891, 
137. 

Cal.Rep.Clt.     53,460;     55,     56;  59,513;  63,288;  65,330; 

68,140;      74,346;      74.347;  74,348;  74,350;  77,     57; 

80,     67;      83,  536;      91,  607;  101,  535;  101,  539;  102,  207; 

122,  349;   123,  493;   123,  494;  123,  496. 

§  1192.  Form  of  certificate  of  acknowledgment  by  at- 
torney in  fact.  The  certificate  of  acknowledgment  by  an 
attorney  in  fact  must  be  substantially  in  the  following 
form: 

State  of  . 

County  of  . 

On  this  day  of ■ — ,  in  the  year  ,  be.'ore 

me  [here  insert  the  name  and  quality  of  the  officer],  per- 
sonally appeared ,  known  to  me  [or  proved  to  me  on 

the  oath  of  1  to  be  the  person  whose  name  is  sub- 
scribed to  the  within  instrument  as  the  attorney  in  fact 

of ,  and  acknowledged  to  me  that  he  subscribed  the 

name  of thereto  as  principal,  and  his  own  name  as 

attorney  in  fact.    En.  March  21,  1872. 

§1193.  Officers  must  affix  their  signatures.  Ofiicers  tak- 
ing and  certifying  acknowledgments  or  proof  of  instru- 
ments for  record,  must  authenticate  their  certificates  by 
aflSxing  thereto  their  signatures,  followed  by  the  names 
of  their  offices;  also,  their  seals  of  oflRce,  if  by  the  laws 
of  the  state  or  country  w^here  the  acknowledgment  or  proof 
is  taken,  or  by  authority  of  which  they  are  acting,  they 
are  required  to  have  official  seals.     En.  March  21,  1872. 

Cal.Rep.Cit.   55,  565;   90,  478. 

§  1194.  Certificate  of  authority  of  justices  in  certain 
cases.  The  certificate  of  proof  or  acknowledgment,  if 
made  before  a  justice  of  the  peace,  when  used  in  any 
county  other  than  that  in  which  he  resides,  must  be  ac- 
companied by  a  certificate  under  the  hand  and  seal  of  the 
clerk  of  the  county  in  which  the  justice  resides,  setting 
forth  that  such  justice,  at  the  time  of  taking  such  proof  or 
acknowledgment,  was  authorized  to  take  the  same,  and  that 
the  clerk  is  acquainted  with  his  handwriting,  and  believes 
that  the  signature  to  the  original  certificate  is  genuine.  En. 
March  21,  1872. 

Cal.Rep.Cit.   135,   176. 


287  RECORDING    TRANSFERS.  §§  1195-1198 

§  1195.  Proof  cf  execution,  how  made.  Proof  of  the 
execution  of  an  instrument,  when  not  acknowledged,  may 
be  made  either: 

1.  By  the  party  executing  it,  or  either  of  them;  or, 

2.  By  a  subscribing  witness;  or, 

3.  By  other  witnesses,  in  cases  mentioned  in  section 
1198.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,  565  ;   55,  566 ;   64,  271. 

§1196.  Witness  must  be  personally  known  to  officer. 
If  by  a  subscribing  witness,  such  witness  must  be  per- 
sonally known  to  the  officer  taking  the  proof  to  be  the 
person  whose  name  is  subscribed  to  the  instrument  as  a 
witness  or  must  be  proved  to  be  such  by  the  oath  of  a 
credible  witness.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,  565;   89,  550. 

§1197.  Witness  must  prove,  wiiat.  The  subscribing 
witness  must  prove  that  the  person  whose  name  is  sub- 
scribed to  the  instrument  as  a  party  is  the  person  described 
in  it,  and  that  such  person  executed  it,  and  that  the  wit- 
ness subscribed  his  name  thereto  as  a  witness.  En.  March 
21,  1872. 

Cal.Rep.Cit.   55.  565;   S9,  550. 

§  1198.  Handwriting  may  be  proved,  when.  The  execu- 
tion of  an  instrument  may  be  established  by  proof  of  the 
handwriting  of  the  party  and  of  a  subscribing  witness,  if 
there  is  one,  in  the  following  cases: 

1.  When  the  parties  and  all  the  subscribing  witnesses 
are  dead;  or, 

2.  When  the  parties  and  all  the  subscribing  witnesses 
are  nonresidents  of  the  state;  or, 

3.  When  the  place  of  their  residence  is  unknown  to  the 
party  desiring  the  proof,  and  cannot  be  ascertained  by  the 
exercise  of  due  diligence;  or, 

4.  When  the  subscribing  witness  conceals  himself,  or 
cannot  be  found  by  the  officer  by  the  exercise  of  due  dili- 
gence in  attempting  to  serve  the  subpoena  or  attachment; 
or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  wit- 
ness to  testify,  for  the  space  of  one  hour  after  his  appear- 
ance.    En.  March  21,  1872. 

Cal.Rep.Cit.   55,  565;   64,  271. 


5§  1199-1201  RECORDING    TRANSFERS.  288 

§  1199.  Evidence  of  handwriting  must  prove,  what.  The 
evidence  taken  under  the  preceding  section  must  satisfac- 
torily prove  to  the  officer  the  following  facts: 

1.  The  existence  of  one  or  more  of  the  conditions  men- 
tioned therein;   and, 

2.  That  the  witness  testifying  knew  the  person  whose 
name  purports  to  be  subscribed  to  the  instrument  as  a 
party,  and  is  well  acquainted  with  his  signature,  and  that 
it  is  genuine;  and, 

3.  That  the  witness  testifying  personally  knew  the  per- 
son who  subscribed  the  instrument  as  a  witness,  and  is 
well  acquainted  with  his  signature,  and  that  it  is  genuine; 
and, 

4.  The  place  of  residence  of  the  witness.  En.  March  21, 
1872.     Am'd.  1873-4,  227. 

Cal.Rep.Cit.  55,   565. 

Proving  handwriting,  generally:  See  Code  Civ.  Proc, 
sees.  1315,  1943-1945. 

§  1200.  Certificate  of  proof.  An  officer  taking  proof  of 
the  execution  of  any  instrument  must,  in  his  certificate  in- 
dorsed thereon  or  attached  thereto,  set  forth  all  the  mat- 
ters required  by  law  to  be  done  or  known  by  him,  or 
proved  before  him  on  the  proceeding,  together  with  the 
names  of  all  the  witnesses  examined  before  him,  their 
places  of  residence  respectively,  and  the  substance  of  their 
testimony.    En.  March  21,  1872. 

Cal.Rep.Cit.   55,   565. 

§  1201.  Officers  authorized  to  do  certain  things.  Offi- 
cers authorized  to  take  the  proof  of  instruments  are  au- 
thorized in  such  proceedings: 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in 
section  2093,  Code  of  Civil  Procedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  issue  subpoena,  as  prescribed  in  section  1986,  Code 
of  Civil  Procedure; 

4.  To  punish  for  contempt,  as  prescribed  in  sections 
1991,  1993,  1994,  Code  of  Civil  Procedure.  En.  March  21, 
1872. 

Cal.Rep.Cit.  55,   565. 

The  civil  damages  and  forfeiture  to  the  party  aggrieved 
are  prescribed  in  section  1992,  Code  of  Civil  Procedure. 


2S9  RECORDING    TRANSFERS.  §§  1202-1207 

§  1202.  When  instrument  is  improperly  certified,  party 
may  have  action  to  correct  error.  When  the  acknowledg- 
ment or  proof  of  the  execution  of  an  instrument  is  properly 
made,  but  defectively  certified,  any  party  interested  may 
have  an  action  in  the  district  court  to  obtain  a  judgment 
correcting  the  certificate.     En.  March  21,  jl872. 

Cal.Rep.Cit.     53,485;      53,486;     53,487;     55,565;     59,514; 
63,  2SS;      73,  454;   116,  376. 

§  1203.  in  certain  cases  parties  interested  may  obtain 
judgment  of  proof  of  an  instrument.  Any  person  interested 
under  an  instrument  entitled  to  be  proved  for  record  may 
institute  an  action  in  the  district  court  against  the  proper 
parties  to  obtain  a  judgment  proving  such  instrument.  En. 
March  21, 1872. 

Cal.Rep.Cit.  53,  485;   53,  486;   53,  487;   55,  566. 

§  1204.  Effect  of  judgment  in  such  action.  A  certified 
copy  of  the  judgment  in  a  proceeding  instituted  under 
either  of  the  two  preceding  sections,  showing  the  proof 
of  the  instrument,  and  attached  thereto,  entitles  such  in- 
strument to  record,  with  like  effect  as  if  acknowledged. 
En.  March  21,  1872. 

Cal.Rep.Cit.  55,   566. 

§  1205.  Conveyances  heretofore  made  to  be  governed 
by  then  existing  laws.  The  legality  oZ  the  execution,  ac- 
knowledgment, proof,  form,  or  record  of  any  conveyance 
or  other  instrument  made  before  this  code  goes  into  effect, 
executed,  acknowledged,  proved,  or  recorded  is  not  affected 
by  anything  contained  in  this  chapter,  but  depends  for  its 
validity  and  legality  upon  the  laws  in  force  when  the  act 
was  performed.     En.  March  21,  1872. 

Cal.Rep.Cit.  53,  486;   55,  566. 

§  1206.  Recording  to  be  governed  by  then  existing  laws. 
All  conveyances  of  real  property  made  before  this  code 
goes  into  effect,  and  acknowledged  or  proved  according 
to  the  laws  in  force  at  the  time  of  such  making  and  ac- 
knowledgment or  proof,  have  the  same  force  as  evidence, 
and  may  be  recorded,  in  the  same  manner  and  with  the 
like  effect,  as  conveyances  executed  and  acknowledged  in 
pursuance  of  this  chapter.     En.  March  21,  1872. 

§  1207.     Validating   defective  certificates  of  acknowledg- 
ment.    Any  instrument  affecting  real  property,  which  was. 
Civ.  Code— 13 


S  1213  RECORDING    TRANSFERS.  290 

previous  to  the  first  day  of  January,  one  thousand  nine 
hundred  and  three,  copied  into  the  proper  book  of  record, 
kept  in  the  office  of  any  county  recorder,  imparts,  after 
that  date,  notice  of  its  contents  to  subsequent  purchasers 
and  incumbrancers,  notwithstanding  any  defect,  omission, 
or  informality  in  the  execution  of  the  instrument,  or  in 
the  certificate  of  acknowledgment  thereof,  or  the  absence 
of  any  such  certificate;  but  nothing  herein  affects  the 
rights  of  purchasers  or  incumbrancers  previous  to  that 
date.  Duly  certified  copies  of  the  record  of  any  such 
instrument  may  be  read  in  evidence  with  like  effect  as 
copies  of  an  instrument  duly  acknowledged  and  recorded; 
provided,  when  such  copying  in  the  proper  book  of  record 
occurred  within  fifteen  years  prior  to  the  trial  of  the  ac- 
tion, it  is  first  shown  that  the  original  instrument  was 
genuine.  En.  Stats.  1873-4,  228.  Am'd.  1897,  64;  1903,  108. 
Cal.Rep.Cit.   55,   566. 

Acts  curing  defective  acknowledgments:     See  post,  Ap- 
pendix, title  Acknowledgments. 


ARTICLE    TV. 

EFFECT    OF    RECORDING    OR    OF    THE    WANT    THEREOF. 
§  1213.      Conveyance    filed    with    recorder    is    constnutive    notice. 
§  1214.     Conveyances  to  be  recorded,  or  are  void,  etc. 
§  1215.      Conveyance  defined. 
§  1216.      Powers   of   attorney,    how   revoked. 
§  1217.     Unrecorded  instrument  valid  between  the  parties. 

§  1213.  Conveyance  filed  with  recorder  is  constructive 
notice.  Every  conveyance  of  real  property,  acknowledged 
or  proved,  and  certified,  and  recorded,  as  prescribed  by 
law,  from  the  time  it  is  filed  with  the  recorder  for  record, 
is  constructive  notice  of  the  contents  thereof  to  subsequent 
purchasers  and  mortgagees;  and  a  certified  copy  of  any 
such  recorded  conveyance  may  be  recorded  in  any  other 
county,  and  when  so  recorded  the  record  thereof  shall 
have  the  same  force  and  effect  as  though  it  was  of  the 
original  conveyance.    En.  March  21,  1872.     Am'd.  1897,  59. 

Cal.Rep.Cit.  46,  606;  46,  608;  46,  609;  55,  528;  63,  316; 

70,     25;  74,218;  90,477;  96,306;  96,307;  98,518; 

104,  398;  104,  400;  109,  189;  128,  632;  131.  556;  131,  557; 
134.  447. 

Recording  dates  from  time  of  deposit:  See  ante,  sec 
1170. 


291  RECORDING    TRANSFERS.  §§  1214-1217 

§  1214.     Conveyances   to    be    recorded,   or   are   void,   etc. 

Every  conveyance  of  real  property,  other  than  a  lease 
for  a  term  not  exceeding  one  year,  is  void  as  against  any 
subsequent  purchaser  or  mortgagee  of  the  same  property, 
or  any  part  thereof,  in  good  faith  and  for  a  valuable  con- 
sideration, whose  conveyance  is  first  duly  recorded,  and  as 
against  any  judgment  affecting  the  title,  unless  such  con- 
veyance shall  have  been  duly  recorded  prior  to  the  record 
of  notice  of  action.     En.  March  21,  1872.     Am'd.  1895,  50. 

Cal.Rep.Cit.      46,  606;      46,  60S;      46,  609;  63,  316;  65,  159 

74,218;      74,446;      75,554;      77,538;  82,624;  82,625 

85,  272;      96,  306;      96,  307;      97,  582;  98,  518;  100,  591 

109,  189;    113,  532;   119,     63;   124,  579;  126,  604;  126,  606 

130,  458;    131,  559;    131,  560;   134,  443. 

Intent  to  defraud  purchasers  avoids  deed:  See  post,  sec. 
1227. 

§  1215.  Conveyance  defined.  The  term  "conveyance," 
as  used  in  sections  1213  and  1214,  embraces  every  instru- 
ment in  writing  by  which  any  estate  or  interest  in  real 
property  is  created,  aliened,  mortgaged,  or  incumbered, 
or  by  which  the  title  to  any  real  property  may  be  affected, 
except  wills.     En.  March  21,  1872. 

Cal.Rep.Cit.      46,607;      46,608;      46,609;      55,528;      55,566; 
74,218;      74,349;      96,307;      98,518;      98,  529 ;   120,  179 ; 
126,  603;    126.  606. 

§  1216.  Powers  of  attorney,  how  revoked.  No  instru- 
ment containing  a  power  to  convey  or  execute  instruments 
affecting  real  property,  which  has  been  recorded,  is  re- 
voked by  any  act  of  the  party  by  whom  it  was  executed, 
unless  the  instrument  containing  such  revocation  is  also 
acknowledged  or  proved,  certified  and  recorded,  in  the 
same  office  in  which  the  instrument  containing  the  power 
was  recorded.     En.  March  21,  1872. 

Cal.Rep.Cit.   55,   566. 

§  1217.  Unrecorded  instrument  valid  between  the  par- 
ties. An  unrecorded  instrument  is  valid  as  between  the 
parties  thereto  and  those  who  have  notice  thereof.  En. 
March  21,  1872. 

Cal.Rep.Cit.  82,  626;  85,  272;  96,  305;  96,  306;  100,  590; 
104,  398;  108,  253;  108,  256;  118,  260;  119,  63;  119,  371; 
124,  579;   130,  457. 


S§  1227-1229  UNLAWTUL    TRANSFERS.  292 

CHAPTER  V. 

UNLAWFUL    TRANSFERS. 

§  1227.     Certain    instruments   void    against   purchasers,    etc. 

§  122S.     Not  void  against  purchaser  having  notice,   unless  fraud  la 

mutual. 
§   1229.     Power   to   revoke,   when   deemed   executed. 
§   1230.      Same. 
§  1231.     Other  provisions. 

§  1227.  Certain  instruments  void  against  purchasers,  etc. 
Every  instrument,  other  than  a  will,  affecting  an  estate  in 
real  property,  including  every  charge  upon  real  property, 
or  upon  its  rents  or  profits,  made  with  intent  to  defraud 
prior  or  subsequent  purchasers  thereof,  or  incumbrancers 
thereon,  is  void  as  against  every  purchaser  or  incum- 
brancer, for  value,  of  the  same  property,  or  the  rents 
or  profits  thereof.    En.  March  21,  1872. 

Cal.Rep.Cit.  55,  566;   114,  535;   117.  146. 

Transfers  in  fraud  of  creditors:  See  post,  sees.  3439  et 
seq. 

Fraudulent  intent  is  question  of  fact:  See  post,  sec. 
3442. 

§  1228.  Not  void  against  purchaser  having  notice,  unless 
fraud  is  mutual.  No  instrument  is  to  be  avoided  under  the 
last  section,  in  favor  of  a  subsequent  purchaser  or  incum- 
brancer having  notice  thereof  at  the  time  his  purchase 
was  made,  or  his  lien  acquired,  unless  the"  person  in  whose 
favor  the  instrument  was  made  was  privy  to  the  fraud 
intended.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,   566. 

§  1229.  Power  to  revoke,  when  deemed  executed.  Where 
a  power  to  revoke  or  modify  an  instrument  affecting  the 
title  to,  or  the  enjoyment  of  an  estate  in  real  property, 
is  reserved  to  the  grantor,  or  given  to  any  other  person, 
a  subsequent  grant  of,  or  charge  upon,  the  estate,  by  the 
person  having  the  power  of  revocation,  in  favor  of  a  pur- 
chaser or  incumbrancer  for  value,  operates  as  a  revocation 
of  the  original  instrument,  to  the  extent  of  the  power,  in 
favor  of  such  purchaser  or  incumbrancer.  En.  March  21, 
1872. 

Cal.Rep.Cit.   55,  566;   132,  558. 


293 


GENERAL    PROVISIONS. 


§§  1230,  1231 


§  1230.  Same.  Where  a  person  having  a  power  of  revo- 
cation, within  the  provisions  of  the  last  section,  is  not  en- 
titled to  execute  it  until  after  the  time  at  which  he  makes 
such  a  grant  or  charge  as  is  described  in  that  section,  the 
power  is  deemed  to  be  executed  as  soon  as  he  is  entitled  to 
execute  it.    En.  March  21,  1872. 

Cal.Rep.Cit.   132,   558. 

§  1231.  Other  provisions.  Other  provisions  concerning 
unlawful  transfers  are  contained  in  part  II,  division  fourth, 
of  this  code,  concerning  the  special  relations  of  debtor  and 
creditor.     En.  March  21,  1872. 

See  post,  sees.  3439  et  seq. 

TITLE  V. 

HOMESTEADS. 

Chapter  I.     General  Provisions,   §§  1237-1261. 

II.     Homestead  of  the  Head  of  a  Family,  §§  1262- 

1265. 
III.     Homestead  of  Other  Persons,  §§  1266-1269. 


CHAPTER    I. 

GENERAL    PROVISIONS. 

§  1237.  Homestead,  of  what  it  consists. 

§  1238.  From  what  it  may  be  carved. 

§  1239.  From    what   not. 

§  1240.  Exempt  from  forced  sale. 

§  1241.  Subject  to,   when. 

§  1242.  How  conveyed  or   incumbered. 

§  1243.  How   abandoned. 

§  1244.  Same. 

§  1245.  Proceedings  on  execution  against  homestead. 

S  1246.  Same. 

!!  1247.  Same. 

§  1248.  Same. 

§  1249.  Same. 

§  1250.  Same. 

§  1251.  Same. 

§  1252.  Same. 

§  1253.  Same. 

§  1254.  Same. 

!j  1255.  Same. 

§  1256.  Same. 

S  1257.  After  sale,  money  equal  to  homestead  exemption  protected. 

§  1258.  Compensation  of  appraisers. 

§  1259.  Costs. 

§  1260.  Who  may  select  homestead,   value  of. 

§  1261.  Head  of  family  defined. 


§§ 1237-l£il 


GENERAL    PROVISIONS. 


294 


62,  134;      62,  289 

73,  592;      75.  424 

82,  228;      82,  233 

117,  355;    125,  325 

protection: 


69,  198; 

76,  643; 

82,  237; 

126,  528. 

See      Const. 


§  1237.  Homestead,  of  what  it  consists.  The  homestead 
consists  of  the  dwelling-house  in  which  the  claimant  re- 
sides, and  the  land  on  which  the  same  is  situated,  selected 
as  in  this  title  provided.  En.  March  21,  1S72.  Am'd.  1873-4, 
228. 

Cal.Rep.Cit.  119,  166;  52,  630 

70,  239;  71,  302;  71,  303 

78,  312;  79,  610;  80,     73 

92,  519;  &8,  478;  117,  353 

Homesteads — Constitutional 
Cal.  1879,  art.  XVII,  sec.  1. 

Selection  of  homestead:     Post,  sec.  1262. 

Exemption  of  homestead:     Sees.  1240,  1241,  infra. 

Setting  apart  homestead  for  decedent's  family:  Code 
Civ.  Proc,  sees.  1474  et  seq. 

Abandonment  of  homestead:     Sec.  1243,  infra. 

§  1238.  From  what  it  may  be  carved.  If  the  claimant  be 
married,  the  homestead  may  be  selected  from  the  com- 
munity property,  or  the  separate  property  of  the  husband, 
or,  with  the  consent  of  the  wife,  from  her  separate  prop- 
erty. When  the  claimant  is  not  married,  but  is  the  head 
of  a  family,  within  the  meaning  of  section  one  thousand 
two  hundred  and  sixty-one,  the  homestead  may  be  selected 
from  any  of  his  or  her  property.  En.  March  21,  1872. 
Am'd.  1873-4,  229. 

Cal.Rep.Cit.   70,  239;   70,  240;   76,  317;   117,  409;   121,  585; 

§  1239.  From  what  not.  The  homestead  cannot  be  se- 
lected from  the  separate  property  of  the  wife  without  her 
consent,  shown  by  her  making,  or  joining  in  making,  the 
declaration  of  homestead.  En.  March  21,  1872.  Am'd. 
1873-4,  229. 

Cal.Rep.Cit.  76,  529  ;   86,  154  ;   121,  585. 

§  1240.  Exempt  from  forced  sale.  The  homestead  is  ex- 
empt from  execution  or  forced  sale,  except  as  in  this  title 
provided.    En.  March  21,  1872. 


Cal.Rep.Cit.      54,     83 

72,  484;      74,  361 

111,  484;   111,  487 


59,  618 

82,  233 

113,     31 


70,  188;      70,  189;      72,  483; 

82,  237;   100,  327;   108,  220; 

121,  587;   125,     83;   132,  321. 


§1241.  Subject  to,  when.  The  homestead  is  subject  to 
execution  or  forced  sale  in  satisfaction  of  judgments  ob- 
tained : 


295  GENERAL    PROVISIONS.  §§  1242-1244 

1.  Before  the  declaration  of  homestead  was  filed  for 
record,  and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics,  contractoi-s,  subcon- 
tractors, artisans,  architects,  builders,  laborers  of  every 
class,  materialmen's  or  vendors'  liens  upon  the  premises. 

3.  On  debts  secured  by  mortgages  on  the  premises, 
executed  and  acknowledged  by  husband  and  wife,  or  by 
an  unmarried  claimant. 

4.  On  debts  secured  by  mortgages  on  the  premises,  exe- 
cuted and  recorded  before  the  declaration  of  homestead 
was  filed  for  record.  En.  March  21,  1872.  Am'd.  1873-4, 
229;  1880,  7;  1887,  81. 

Cal.Rep.Cit.  59,618;     64,     78;     70,188;  70,559;     72,485; 

78,  474;  82,  229;      86,  141;   104,     34;  108,  220;   111,  486; 

111,  487;  113,     31;   119,  372;   119,  373;  124,  106;   124,  107; 

132,321.  Subd.   1  —  54,     83;      58,       2;  126,530.    Subd.   2— 

72,484;  74,360;      81,649.       Subd.   3  —  99,     48.     Subd.   4— 

71,480;  91,     97;      94,     79;   109,168;  114,567;    119,371; 

121,  256;  124,  417;   125,     S3;   125,  325;  133,  413;   133,  414. 

Mortgage  of:     See  next  section. 

§  1242.  How  conveyed  or  incumbered.  The  homestead 
of  a  married  person  cannot  be  conveyed  or  incumbered, 
unless  the  instrument  by  which  it  is  conveyed  or  incum- 
bered is  executed  and  acknowledged  by  both  husband  and 
wife.     En.  March  21,  1872. 

Cal.Rep.Cit.  78,312;  81,220;  81,221;  82,229;  99,  48; 
100,  238;  102,  207;  108,  220;  113.  31;  113,  32;  117,  354; 
120,     61;   125.     83;   126,  476;   130,  393. 

See  sec.  1241,  subds.  3,  4. 

Act  enabling  parties  to  alienate  and  incumber  home- 
steads:     See  post,  Appendix,  title  Homesteads. 

§  1243.  How  abandoned.  A  homestead  can  be  aban- 
doned only  by  a  declaration  of  abandonment,  or  a  grant 
thereof,  executed  and  acknowledged: 

1.  By  the  husband  and  wife,  if  the  claimant  is  married; 

2.  By  the  claimant,  if  unmarried.     En.  March  21,  1872. 

Cal.Rep.Cit.      58,     15;  65,368;  68,134;  71,328;  74,268; 

78,312;      81,221;  82,229;  93,668;  93,670;  94,     S8 ; 

98,  147;   100,  342;  106,  205;  113,     31;  117,  354;  121,  586. 

Subd.  1—121,     94;  130,  393. 

§  1244.  Same.  A  declaration  of  abandonment  is  effect- 
ual only  from  the  time  it  is  filed  in  the  office  in  which  the 
homestead  was  recorded.    En.  March  21,  1872. 

Cal.Rep.Cit.  65.  368  ;  71.  328  ;  81.  221 ;  95,  405  ;  100,  342  ; 
113,     31;   121,     94;   121,  586. 


§§  1245-1251  GENERAL    PROVISIONS.  296 

§  1245.     Proceedings    on    execution    against    homestead. 

Wbeu  an  execution  lor  the  enforcement  ol"  a  judgment  ob- 
tained in  a  case  not  within  the  classes  enumerated  in 
section  1241  is  levied  upon  the  homestead,  the  judgment 
creditor  may  apply  to  the  superior  court  of  the  county  in 
which  the  homestead  is  situated  for  the  appointment  of 
persons  to  appraise  the  value  thereof.  En.  March  21,  1872. 
Am'd.  1880,  7. 

Cal.Rep.Cit.  59.618;  59,619;  62,138;  70,559;  74,268; 
75,164;  79,461;  79,609;  82,230;  85,  74;  86,120; 
86,  121;      86,  141. 

Value  of  homestead:     See  sec.  1263. 

§  1246.  Same.  The  application  must  be  made  upon  a 
verified  petition,  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the 
homestead; 

2.  The  name  of  the  claimant; 

3.  That  the  value  of  the  homestead  exceeds  the  amount 
of  the  homestead   exemption.     En.   March   21,  1872. 

Cal.Rep.Cit.   79,   461. 

§  1247.  Same.  The  petition  must  be  filed  with  the 
clerk  of  the  superior  court.  En.  March  21,  1872.  Am'd. 
1880,  8. 

§  1248.  Same.  A  copy  of  the  petition,  with  a  notice  of 
the  time  and  place  of  hearing,  must  be  served  upon  the 
claimant,  at  least  two  days  before  the  hearing.  En.  March 
21,  1872. 

§  1249.  Same.  At  the  hearing  the  judge  may,  upon 
proof  of  the  service  of  a  copy  of  the  petition  and  notice, 
and  of  the  facts  stated  in  the  petition,  appoint  three  disin- 
terested residents  of  the  county  to  appraise  the  value  of  the 
homestead.    En.  March  21,  1872. 

Cal.Rep.Cit.   85,   74. 

§  1250.  Same.  The  persons  appointed,  before  entering 
upon  the  performance  of  their  duties,  must  take  an  oath 
to  faithfully  perform  the  same.     En.  March  21,  1872. 

§  1251.  Same.  They  must  view  the  premises  and  ap- 
praise the  value  thereof,  and  if  the  appraised  value  ex- 


297  GENERAL    PROVISIONS.  §§1252-1258 

ceeds  the  homestead  exemption  they  must  determine 
whether  the  land  claimed  can  be  divided  without  material 
injury.     En.  March  21,  1872. 

Cal.Rep.Cit.  79.   610. 

§  1252.  Same.  Within  fifteen  days  after  their  appoint- 
ment they  must  make  to  the  judge  a  report  in  writing, 
which  report  must  show  the  appraised  value  and  their  de- 
termination upon  the  matter  of  a  division  of  the  land 
claimed.     En.  March  21,  1872. 

§  1253.  Same.  If,  from  the  report,  it  appears  to  the 
judge  that  the  land  claimed  can  be  divided  without  ma- 
terial injury,  he  must,  by  an  order,  direct  the  appraisers 
to  set  off  to  the  claimant  so  much  of  the  land,  including 
the  residence,  as  will  amount  in  value  to  the  homestead 
exemption,  and  the  execution  may  be  enforced  against  the 
remainder  of  the  land.     En.  March  21,  1872. 

Cal.Rep.Cit.  52,  630  ;   75,  165  ;   79,  610. 

§  1254.  Same.  If,  from  the  report,  it  appears  to  the 
judge  that  the  land  claimed  exceeds  in  value  the  amount 
of  the  homestead  exemption,  and  that  it  cannot  be  divided, 
he  must  make  an  order  directing  its  sale  under  the  execu- 
tion.   En.  March  21,  1872. 

Cal.Rep.Cit.   79,  461. 

§  1255.  Same.  At  such  sale  no  bid  must  be  received, 
unless  it  exceeds  the  amount  of  the  homestead  exemption. 
En.  March  21,  1872. 

§  1256.  Same.  If  the  sale  is  made,  the  proceeds  thereof, 
to  the  amount  of  the  homestead  exemption,  must  be  paid  to 
the  claimant,  and  the  balance  applied  to  the  satisfaction  of 
the  execution.     En.  March  21,  1872. 

Cal.Rep.Cit.  85,   74. 

§  1257.  After  sale,  money  equal  to  homestead  exemption 
protected.  The  money  paid  to  the  claimant  is  entitled, 
for  the  period  of  six  months  thereafter,  to  the  same  pro- 
tection against  legal  process  and  the  voluntary  disposition 
of  the  husband  which  the  law  gives  to  the  homestead.  En. 
March  21,  1872.     Am'd.  1873-4,  230. 

§  1258.  Compensation  of  appraisers.  The  court  must 
fix  the  compensation  of  the  appraisers,  not  to  exceed  five 


§§  1259-1261  GENERAL    PROVISIONS.  293 

dollars  per  day  each  for  the  time  actually  engaged.     En. 
March  21,  1872. 

§  1259.  Costs.  The  execution  creditor  must  pay  the 
costs  of  these  proceedings  in  the  first  instance;  but  in  the 
cases  provided  for  in  sections  1253  and  1254  the  amount 
so  paid  must  be  addejd  as  costs  on  execution,  and  collected 
accordingly.     En.  March  21,  1872. 

Cal.Rep.Cit.   62,   138;   82,  230. 

§  1260.  Who  may  select  homestead,  value  of.  Home- 
steads may  be  selected  and  claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by 
any  head  of  a  family; 

2.  Of  not  excfeeding  one  thousand  dollars  in  value  by 
any  other  person.    En.  March  21,  1872. 

Cal.Rep.Cit.      62,135;      62,136;      62,137;      62,138;      76,644; 
85,     74;      86,  141;    108,  219;   121,  585;   126,  528. 

Estimate  of  value:     See  sec.  1263,  infra. 
Place  of  recording:     See  sec.  1264,  infra. 

§  1261.  Head  of  family  defined.  The  phrase  "head  of  a 
family,"  as  used  in  this  title,  includes  within  its  meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  person  who  has  residing  on  the  premises  with 
him  or  her,  and  under  his  or  her  care  and  maintenance, 
either:  (1)  his  or  her  minor  child,  or  minor  grandchild, 
or  the  minor  child  of  his  or  her  deceased  wife  or  husband; 
(2)  a  minor  brother  or  sister,  or  the  minor  child  of  a  de- 
ceased brother  or  sister. 

3.  A  father,  mother,  grandfather,  or  grandmother. 

4.  The  father,  mother,  grandfather,  or  grandmother  of  a 
<leceased  husband  or  wife. 

5.  An  unmarried  sister,  or  any  other  of  the  relatives 
mentioned  in  this  section,  who  have  attained  the  age  of 
majority,  and  are  unable  to  take  care  of  or  support  them- 
selves.    En.  March  21,  1872.     Am'd.  1873-4,  230;  1893,  123. 

Cal.Rep.Cit.  108,  219.      Subd.  2  —  86,  141.      Subd.  3  —  86,  138. 
Subd.  6—118,  301;   121,  585., 


299       HOMESTEAD  OF  THE  HEAD  OF  A  FAMILY.       §§  12ti2-i264 

CHAPTER    11. 

HOMESTEAD  OP  THE  HEAD  OP  A  FAMILY. 

S  1262.  Mode  of  selection. 

§  1263.  Declaration    of    homestead. 

I  1264.  Declaration  must  be   recorded.  * 

§  1265.  Tenure   by   which   homestead  is  held. 

§  1262.  Mode  of  selection.  In  order  to  select  a  home- 
stead, the  husband  or  other  head  of  a  family,  or  in  case 
the  husband  has  not  made  such  selection,  the  wife  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant 
of  real  property  is  acknowledged,  a  declaration  of  home- 
stead, and  file  the  same  for  record.  En.  March  21,  1872. 
Am'd.  1873-4,  230. 

Cal.Rep.Cit.     62,135;      62,137;     62,138;     66,458;     76,529; 
76,  644;      79,  205;      98,  148;   lOii,  219;   110,  203;   121,  585; 
126,  52S. 

Declaration  of  homestead:     See  next  section. 
Selection  by  wile:     See  ante,  sees.  1238,  1239. 
Place  of  recording:     See  sec.  1264,  infra. 

§  1263.  Declaration  of  homestead.  The  declaration  of 
homestead  must  contain: 

1.  A  statement,  showing  that  the  person  making  it  is 
the  head  of  a  family;  or,  when  the  declaration  is  made  by 
the  wife,  showing  that  her  husband  has  not  made  such 
declaration,  and  that  she  therefore  makes  the  declaration 
for  their  joint  benefit. 

2.  A  statement  that  the  person  making  it  is  residing  on 
the  premises,  and  claims  them  as  a  homestead. 

3.  A  description  of  the  premises. 

4.  An  estimate  of  their  actual  cash  value.  En.  March  21, 
1872.     Am'd.  1873-4,  231. 


Cal.Rep.Cit 

62,  135 

69,  198 

82,  228 

121,  585 


52,  635 
62,  136 
71,  303 
83,  320 


54,  618 

62,  137 
71,  304 
92,        4 


54,  620 
62,  138 
76,  525 
98,  148 


122,  113.       Subd.   1—126,  528. 


55,  136;  56,  527; 

65,  343;  66,  458; 

76,  644;  79,  205; 

108,  219;  110,  203; 


Head  of  a  family:     See  ante,  sec.  1261. 
Residence  necessary:     See  sec.  1237. 

§  1264.  Declaration  must  be  recorded.  The  declaration 
must  be  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  the  land  is  situated.     En.  March  21,  1872. 

Cal.Rep.Cit.   98,  148;    110,  203. 

Duty  of  recorder:     See  Pol.  Code,  sec.  4235. 


§§  1265-1267  HOMESTEAD    OF    OTHER    PERSONS. 


800 


§  1265.  Tenure  By  which  homestead  is  held.  From  and 
after  the  time  the  declaration  is  filed  for  record,  the 
premises  therein  described  constitute  a  homestead.  If  the 
selection  was  made  by  a  married  person  from  the  com- 
munity property,  the  laud,  on  the  death  of  either  of  the 
spouses,  vests  in  the  survivor,  subject  to  no  other  liability 
than  such  as  exists  or  has  been  created  under  the  pro- 
visions of  this  title;  in  other  cases,  upon  the  death  of  the 
person  whose  property  was  selected  as  a  homestead,  it 
shall  go  to  his  heirs  or  devisees,  subject  to  the  power  of 
the  superior  court  to  assign  the  same  for  a  limited  period 
to  the  family  of  the  decedent;  but  in  no  case  shall  it  be 
held  liable  for  the  debts  of  the  owner,  except  as  provided 
in  this  title.    En.  March  21,  1872.    Am'd.  1873-4,  2cn;  1880,8. 


Cal.Rep.Cit 

50,  543 

52,  296 

52,  297; 

52,  298 

54,  501; 

64,  398 

76,  531 

76,  644 

78,  312; 

78,  474 

79,  205; 

81,  219 

81,  243 

82,  10 

83,  442; 

85,  74 

85,  621; 

86,  120 

86,  138 

86,  153 

92,  371; 

92.  519 

98,  148; 

98,  478 

100,  451 

102,  341 

108,  654; 

111,  483 

113,  30  ; 

118,  300 

118,  301 

121,  269 

121,  653; 

132,  611. 

Descent  of  homestead:  See  Code  Civ.  froc,  sees.  1474, 
1475. 

Property  exempt  from  execution  to  be  set  apart  for  fam- 
ily:    Code  Civ.  Proc,  sees.  1465-1470. 

Homestead  set  apart  by  probate  court:  Code  Civ.  Proc, 
sees.  1474  et  seq. 


CHAPTER    III. 

HOMESTEAD    OF    OTHER    PERSONS. 

§  1266.  Mode  of   selection. 

§   1267.  Declaration    of    homestead. 

§   1268.  Declaration    must   be   recorded. 

§  1269.  Effect  of  filing   for  record  the  declaration  of  homestead. 

§  1266.  Mode  of  selection.  Any  person  other  than  the 
head  of  a  family,  in  the  selection  of  a  homestead,  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant 
of  real  property  is  acknowledged,  a  "declaration  of  home- 
stead."    En.  March  21,  1872. 

Cal.Rep.Cit.  86,  141. 

§  1267.  Declaration  of  homestead.  The  declaration 
must  contain  everything  required  by  the  second,  third,  and 
fourth  subdivisions  of  section  1263.     En.  March  21.  1872. 


801  HOMESTEAD    OF    OTHER    PERSONS.         §§  1263,  1269 

§  1268.  Declaration  must  be  recorded.  The  declaration 
must  be  recorded  in  the  office  of  the  county  recorder  of 
the  county  in  which  the  land  is  situated.  En.  March  21, 
1872. 

Duty  of  recorder:     See  Pol.  Code,  sec.  4235. 

§  1269.  Effect  of  filing  for  record  the  declaration  of 
homestead.  From  and  after  the  time  the  declaration  is 
filed  for  record,  the  land  described  therein  is  a  homestead. 
En.  March  21,  1872. 

Cal.Rep.Cit.  82,  228;   86,  141. 


EXECUTION    AND    REVOCATION    OF    WILLS. 


302 


TITLE  VI. 

WILLS. 

Chapter  I.    Execution  and  Revocation  of  Wills,   §§  1270- 
1313. 
n.     Interpretation  of  Wills,  §§  1317-1351. 
III.    General  Provisions  Relating  to  Wills,  §§  1357- 
1377. 


CHAPTER    L 
EXECUTION    AND    REVOCATION    OF    WILLS. 

§  1270.  Who  may  make  a  will. 

§   1271.  Monomaniac    incompetent.       (Repealed.) 

§   1272.  Will,  or  part  thereof,  procured  by  fraud. 

§   1273.  Will  of  married  women. 

§   1274.  What  may  pass  by  will. 

§  1275.  Who  may  take  by  will. 

§   1276.  Written   will,   how  to   be  executed. 

§   1277.  Definition    of    an    olographic    will. 

§   1278.  Witness  to  add  residence. 

§  1279.  Mutual   will. 

§  1280.  Competency  of  subscribing  witness. 

§   1281.  Conditional    will. 

I  1282.  Gifts   to    subscribing   witnesses   void.      Creditors   competent 

witnesses. 

!  1283.  Witness   who    Is   a   devisee,    and  who   would   be   entitled  to 

share  of  testator's  estate  if  no  will,  entitled  to  share  to 

amount   of   devise. 

§  1284.  Will  made  out  of  this  state.     (Repealed.) 

§   1285.  Will   made  out  of   state. 

§  1286.  Subsequent  change  of  domicile.      (Repealed.) 

§   1287.  Republication   by   codicil. 

\|  1288.  Nuncupative  will,   how   to   be   executed. 

§^1289.  Requisites  of  a  valid  nuncupative  will. 

§   1290.  Proof  of  nuncupative   wills. 

§  1291.  Probate  of  nuncupative  wills. 

§  1292.  Written   will,   how  revoked. 

§  1293.  Evidence  of  revocation. 

§  1294.  Revocation  by  obliteration  on  face  of  will.      (Repealed.) 

§  1295.  Revocation  of  duplicate. 

§  1296.  Revocation  by  subsequent  will. 

§  1297.  Antecedent  not  revived  by  revocation  of  subsequent  wilL 

§  1298.  Revocation  by  marriage  and  birth  of  issue. 

§  1299.  Effect  of  marriage  of  a  man  on  his  will. 

§  1300.  Effect  of  a  marriage  of  a  woman  on  her  wilL 

§   1301.  Contract  of  sale  not  a  revocation. 

§  1302.  Mortgage  not  a  revocation  of  will. 

§  1303.  Conveyance,   when   not   a   revocation. 

§   1304.  When  It  is  a  revocation. 

§   1305.  Revocation  of  codicils. 

§  1306.  Afterborn  child,  unprovided  for,  to  succeed. 

§  1307.  Children  or  issue  of  children  of  testator  imprpvided  for  by 

his  will. 


303     EXECUTION    AND    REVOCATION    OF    WILLS.      §§  1270-1273 

S  1308.     Share  of  afterborn  child,  out  of  what  part  of  estate  to  be 

paid. 
S  1309.     Advancement  during 'lifetime  of  testator. 
§  1310.     Death  of  devisee,   being  relation  of  testator,  in  lifetime  of 

testator,  leaving  lineal  descendants.  " 

§  1311.     Devises  of  land,  how  construed. 

§  1312.     Will  to  pass  rights  acquired  after  the  making  thereof. 
§  1313.     Restriction  on  devise  for  charitable  uses. 

§  1270.  Who  may  make  a  will.  Every  person  over  the 
age  of  eighteen  years,  of  sound  mind,  may,  by  last  will, 
dispose  of  all  his  estate,  real  and  personal,  and  such  estate 
not  disposed  of  by  will  is  succeeded  to  as  provided  in  title 
VII  of  this  part,  being  chargeable  in  both  cases  with  the 
payment  of  all  the  decedent's  debts,  as  provided  in  the 
Code  of  Civil  Procedure.     En.  March  21,  1872. 

Cal.Rep.Cit.  58,  516. 

Wills  of  married  women:     See  sec.  1273. 

Wills  of  unmarried  women  revoked  by  marriage:  Sec. 
1300,   infra. 

Validity  of  will:  See  sections  on  execution  of  wills,  sees. 
1276,  1376. 

§  1271.  Monomaniac  incompetent.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  232. 

§  1272.  Will,  or  part  thereof,  procured  by  fraud.  A  will, 
or  a  part  of  a  will,  procured  to  be  made  by  duress,  menace, 
fraud,  or  undue  influence,  may  be  denied  probate;  and  a 
revocation,  procured  by  the  same  means,  may  be  declared 
void.    En.  March  21,  1872. 

Contest  of  will:     See  Code  Civ.  Proc,  sec.  1312. 

"Undue  influence  as  affecting  contracts:  See  post,  sec. 
1575. 

Revocation  of  will:     Post,  sec.  1292. 

Contesting  probate  of  will:  Code  Civ.  Proc,  sees.  1312 
et  seq.;  after  probate:  Code  Civ.  Proc,  sees.  1327,  et  seq. 

§  1273.  Will  of  married  women.  A  married  woman  may 
dispose  of  all  her  separate  estate  by  will,  without  the  con- 
sent of  her  husband,  and  may  alter  or  revoke  the  will  in 
like  manner  as  if  she  were  single.  Her  will  must  be  exe- 
cuted and  proved  in  like  manner  as  otber  wills.  En-  March 
21,  1872.     Am'd.  1873-4,  232. 

Cal.Rep.Cit.  70,  142. 


§§  1274-1276     EXECUTION    AND    REVOCATION    OF    WILLS.      304 

§  1274.  What  may  pass  by  will.  Every  estate  and  in- 
terest in  real  or  personal  property,  to  whicli  heirs,  husband, 
widow,  -or  next  of  liin  might  succeed,  may  be  disposed  of 
by  will,  except  as  otherwise  provided  in  sections  1401  and 
1402.    En.  March  21,  1872. 

Cal.Rep.Cit.   112,   395. 

§  1275.  Who  may  take  by  will.  A  testamentary  dispo- 
sition may  be  made  to  any  person  capable  by  law  of  taking 
the  property  so  disposed  of,  except  corporations  other  than 
those  formed  for  scientific,  literary,  or  solely  educational 
or  hospital  purposes,  cannot  take  under  a  will,  unless  ex- 
pressly authorized  by  statute.  En.  March  21,  1872.  Am'd. 
1873-4,  275;   1903,  258. 

Cal.Rep.Cit.   59,  131;    60,  309;   63,  621;    123,  624. 

Charitable  uses,  validity  of:  See  post,  sees.  1313  et  seq., 
ante,  sec.  847. 

§  1276.  Written  will,  how  to  be  executed.  Every  will,' 
other  than  a  nuncupative  will,  must  be  in  writing;  and 
every  will,  other  than  an  olographic  will,  and  a  nuncupa- 
tive will,  must  be  executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  tes- 
tator himself,  or  some  person  in  his  presence  and  by  his 
direction  must  subscribe  his  name  thereto; 

2.  The  subscription  must  be  made  in  the  presence  of  the 
attesting  witnesses,  or  be  acknowledged  by  the  testator  to 
them,  to  have  been  made  by  him  or  by  his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing  or  ac- 
knowledging the  same,  declare  to  the  attesting  witnesses 
that  the  instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  his  name  as  a  witness,  at  the  end  of  the  will, 
at  the  testator's  request,  and  in  his  presence.  En.  March 
21,  1872. 

Cal.Rep.Cit.   54,  517  ;   68,  519 ;   96,  600  ;   107,  6 ;   110,  390. 
See  sec.  1278,  infra. 
Olographic  will:     See  sec.  1277,  infra. 
Conjoint  or  mutual  will:      See  sec.  1279,  infra. 
Nuncupative  will:     See  sees.  1288-1291. 
Execution  of  foreign  will:     See  post,  sec.  1285. 


305      EXECUTION    AND    REVOCATION    OP    WILLS.      §§  1277-1282 

§  1277.     Definition  of  an  olographic  will.     An  olographic 

will  is  one  that  is  entirely  written,  dated,  and  signed  by 

the  band  of  the  testator  himself.    It  is  subject  to  no  other 

form,  and  may  be  made  in  or  out  of  this  state,  and  need 

not  be  witnessed.    En.  March  21,  1872. 

Cal.Rep.Cit.     58,532;     61,475;     64,427;     70,  143 ;   100,  207 ; 
112,  519;    135,     29. 

May  be  proven  in  same  manner  as  other  private  writ- 
ings:    Code  Civ.  Proc,  sec.  1309. 

§  1278.  Witness  to  add  residence.  A  witness  to  a  writ- 
ten will  must  write,  with  his  name,  his  place  of  residence; 
and  a  person  who  subscribes  the  testator's  name,  by  his 
direction,  must  write  his  own  name  as  a  witness  to  the 
will.  But  a  violation  of  this  section  does  not  affect  the 
validity  of  the  will.    En.  March  21,  1872. 

Cal.Rep.Cit.   54,   518. 

§  1279.  Mutual  will.  A  conjoint  or  mutual  will  is  valid, 
but  it  may  be  revoked  by  any  of  the  testators,  in  like  man- 
ner with  any  other  will.    En.  March  21,  1872. 

§  1280.  Competency  of  subscribing  witness.  If  the  sub- 
scribing witnesses  to  a  will  are  competent  at  the  time  of 
attesting  its  execution,  their  subsequent  incompetency, 
from  whatever  cause  it  may  arise,  does  not  prevent  the  pro- 
bate and  allowance  of  the  will,  if  it  is  otherwise  satisfac- 
torily proved.    En.  March  21,  1872. 

§  1281.  Conditional  will.  A  will,  the  validity  of  which  is 
made  by  its  own  terms  conditional,  may  be  denied  pro- 
bate, according  to  the  event,  with  reference  to  the  condi- 
tion.    En.  March  21,  1872. 

Conditional  devises  and  bequests:  See  post,  sees.  1345 
et  seq. 

§  1282.  Gifts  to  subscribing  witnesses  void.  Creditors 
competent  witnesses.  All  beneficial  devises,  legacies,  and 
gifts  whatever,  made  or  given  in  any  will  to  a  subscribing 
witness  thereto,  are  void,  unless  there  are  two  other  com- 
petent subscribing  witnesses  to  the  same;  but  a  mere 
charge  on  the  estate  of  the  testator  for  the  payment  of 
debts  does  not  prevent  his  creditors  from  being  competent 
witnesses  to  his  will.    En.  March  21,  1872. 

Cal.Rep.Cit.   120,   315. 


§§  12S3-1289      EXECUTION    AND    REVOCATION    OF    WILLS.      306 

§  1283.  Witness  who  is  a  devisee,  and  who  would  be 
entitled  to  share  of  testator's  estate  if  no  will,  entitled  to 
share  to  amount  cf  devise.  If  a  witness,  to  whom  any 
beneficial  devise,  legacy  or  gift,  void  by  the  preceding  sec- 
tion, is  made,  would  have  been  entitled  to  any  share  of  the 
estate  of  the  testator,  in  case  the  will  should  not  be  estab- 
lished, he  succeeds  to  so  much  of  the  share  as  would  be 
distributed  to  him,  not  exceeding  the  devise  or  bequest 
made  to  him  in  the  will,  and  he  may  recover  the  same  of 
the  other  devisees  or  legatees  named  in  the  will,  in  pro- 
portion to  and  out  of  the  parts  devised  or  bequeathed  to 
them.    En.  March  21,  1872.    Am'd.  1873-4,  232. 

§  1284.  Will  made  out  of  this  state.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  232. 

§  1285.  Will  made  out  of  statei.  No  will  made  out  of  this 
state  is  valid  as  a  will  in  this  state,  unless  executed  accord- 
ing to  the  provisions  of  this  chapter.  En.  March  21,  1872. 
Am'd.  1873-4,  232. 

Probate  of  foreign  wills:    Code  Civ.  Proc,  sec.  1322. 

§  1286.     Subsequent    change    of    domicile.       (Repealed.) 

En.  March  21,  1872.     Rep.  1873-4,  232. 

§  1287.  Republication  by  codicil.  The  execution  of  a 
codicil,  referring  to  a  previous  will,  has  the  effect  to  re- 
publish the  will,  as  modified  by  the  codicil.  En.  March  21, 
1872. 

Cal.Rep.Cit.   94,  673;   138,  434;   138,  435;    138,  436;    138,  438. 

§  1288.  Nuncupative  will,  how  to  be  executed.  A  nun- 
cupative will  is  not  required  to  be  in  writing,  nor  to  be 
declared  or  attested  with  any  formalities.  En.  March  21, 
1872. 

How  admitted  to  probate:    Code  Civ.  Proc,  sec.  1344. 

Probating  nuncupative  wills:    See  sees.  1290,  1291,  infra. 

§  1289.  Requisites  of  a  valid  nuncupative  will.  To  make 
a  nuncupative  will  valid,  and  to  entitle  it  to  be  admitted 
to  probate,  the  following  requisites  must  be  observed: 

1.  The  estate  bequeathed  must  not  exceed  in  value  the 
sum  of  one  thousand  dollars. 

2.  It  must  be  proved  by  two  witnesses  who  were  present 


307       EXECUTION  AND   REVOCATION  OF   WILLS.       §§  1290-1292 

at  the  making  thereof,  one  of  whom  was  asked  by  the 
testator,  at  the  time  to  bear  witness  that  such  was  his 
will,  or  to  that  effect. 

3.  The  decedent  must,  at  the  time,  have  been  in  actual 
military  service  in  the  field,  or  doing  duty  on  shipboard  at 
sea,  and  in  either  case  in  actual  contemplation,  fear,  or 
peril  of  death,  or  the  decedent  must  have  been,  at  the 
time,  in  expectation  of  immediate  death  from  an  injury 
received  the  same  day.  En.  March  21,  1872.  Am'd.  1873-4, 
233. 

§  1290.  Proof  of  nuncupative  wills.  No  proof  must  be 
received  of  any  nuncupative  will  unless  it  is  offered  within 
six  months  after  speaking  the  testamentary  words,  nor 
unless  the  words  or  the  substance  thereof,  were  reduced  to 
writing  within  thirty  days  after  they  were  spoken.  En. 
March   21,   1872. 

Probate  of  nuncupative  wills:  See  Code  Civ.  Proc,  sec. 
3344. 

§  1291.  Probate  of  nuncupative  wills.  No  probate  of 
any  nuncupative  will  must  be  granted  for  fourteen  days 
after  the  death  of  the  testator,  nor  must  any  nuncupative 
will  be  at  any  time  proved,  unless  the  testamentary  words, 
or  the  substance  thereof,  be  first  committed  to  writing, 
and  process  issued  to  call  in  the  widow,  or  other  persons 
Interested,  to  contest  the  probate  of  such  will,  if  they  think 
proper.    En.  March  21,  1872. 

Time  of  probate:    See  Code  Civ.  Proc,  sec.  1345. 

§  1292.  Written  will,  how  revoked.  Except  in  the  cases 
in  this  chapter  mentioned,  no  written  will,  nor  any  part 
thereof,  can  be  revoked  or  altered  otherwise  than: 

1.  By  a  written  will,  or  other  writing  of  the  testator, 
declaring  such  revocation  or  alteration,  and  executed  with 
the  same  formalities  with  which  a  will  should  be  executed 
by  such  testator;   or, 

2.  By  being  burnt,  torn,  canceled,  obliterated,  or  de- 
stroyed, with  the  intent  and  for  the  purpose  of  revoking 
the  same,  by  the  testator  himself,  or  by  some  person  in  his 
presence  and  by  his  direction.    En.  March  21,  1872. 

Cal.Rep.Cit.     50,  601;   101,  614;   107,       5;   107,       6;   108,  690; 
122,  229  ;   138,  436. 


§§  1293-129S       EXECUTION  AND   REVOCATION  OF   WILLS.       308 

§  1293.  Evidence  of  revocation.  When  a  will  is  can- 
celed or  destroyed  by  any  other  person  than  the  testator, 
the  direction  of  the  testator  and  the  fact  of  such  injury 
or  destruction,  must  be  proved  by  two  witnesses.  En. 
March  21,  1872. 

§  1294.  Revocation  by  obliteration  on  face  of  will.  (Re- 
pealed.)    En.  March  21,  1872.     Rep.  1873-4,  233. 

§  1295.  Revocation  of  duplicate.  The  revocation  of  a 
will,  executed  in  duplicate,  may  be  made  by  revoking  one 
of  the  duplicates.    En.  March  21,  1872. 

§  1296.  Revocation  by  subsequent  will.  A  prior  will  is 
not  revoked  by  a  subsequent  will,  unless  the  latter  contains 
an  express  revocation,  or  provisions  wholly  inconsistent 
with  the  terms  of  the  former  will;  but  in  other  cases  the 
prior  will  remains  effectual  so  far  as  consistent  with  the 
provisions  of  the  subsequent  will.    En.  March  21,  1872. 

Cal.Rep.Cit.   104,   568. 

§  1297.  Antecedent  not  revived  by  revocation  of  subse- 
quent will.  If,  after  making  a  will,  the  testator  duly  makes 
and  executes  a  second  will,  the  destruction,  cancellation, 
or  revocation  of  such  second  will  does  not  revive  the  first 
will,  unless  it  appears  by  the  terms  of  such  revocation 
that  it  was  the  intention  to  revive  and  give  effect  to  the 
first  will,  or  unless,  after  such  destruction,  cancellation,  or 
revocation,  the  first  will  is  duly  republished.  En.  March 
21,  1872. 

Cal.Rep.Cit.   108,   690. 

§  1298.     Revocation  by  marriage  and  birth  of  issue.     If, 

after  having  made  a  will,  the  testator  marries,  and  has 
issue  of  such  marriage,  born  either  in  his  lifetime  or  after 
his  death,  and  the  wife  or  issue  survives  him,  the  will  is 
revoked,  unless  provision  has  been  made  for  such  issue  by 
some  settlement,  or  unless  such  issue  are  provided  for  in 
the  will,  or  in  such  way  mentioned  therein  as  to  show  an 
intention  not  to  make  such  provision;  and  no  other  evi- 
dence to  rebut  the  presumption  of  such  revocation  can  be 
received.  En.  March  21,  1872. 
Cal.Rep.Cit.  65.  52 ;  107,  7. 


309       EXECUTION  AND  REVOCATION   OF  WILLS.       §§  1299-1304 

§  1299.  Effect  of  marriage  of  a  man  on  his  will.  If,  after 
making  a  will,  tlie  testator  marries,  and  the  wife  survives 
the  testator,  the  will  is  revoked,  unless  provision  has  been 
made  for  her  by  marriage  contract,  or  unless  she  is  pro- 
vided for  in  the  will,  or  in  such  way  mentioned  therein 
as  to  show  an  intention  not  to  make  such  provision;  and 
no  other  evidence  to  rebut  the  presumption  of  revocation 
must  be  received.    En.  March  21,  1872. 

Cal.Rep.Cit.   65.  52;   87.  647;   87,  648;   107.  7. 

§  1300.  Effect  of  a  marriage  of  a  woman  on  her  will.  A 
will,  executed  by  an  unmarried  woman,  is  revoked  by  her 
subsequent  marriage,  and  is  not  revived  by  the  death  of  her 
husband.     En.  March  21,  1872. 

Cal.Rep.Cit.  107,  5 ;   107,  7. 

§  1301.  Contract  of  sale  not  a  revocation.  An  agreement 
made  by  a  testator,  for  the  sale  or  transfer  of  property  dis- 
posed of  by  a  will  previously  made,  does  not  revoke  such 
disposal;  but  the  property  passes  by  the  will,  subject  to 
the  same  remedies  on  the  testator's  agreement,  for  a 
specific  performance  or  otherwise  against  the  devisees  or 
legatees,  as  might  be  had  against  the  testator's  successors, 
if  the  same  had  passed  by  succession.    En.  March  21,  1872. 

§  1302.  Mortgage  not  a  revocation  of  will.  A  charge 
or  incumbrance  upon  any  estate,  for  the  purpose  of  secur- 
ing the  payment  of  money  or  the  performance  of  any 
covenant  or  agreement,  is  not  a  revocation  of  any  will 
relating  to  the  same  estate  which  was  previously  executed; 
but  the  devise  and  legacies  therein  contained  must  pass, 
subject  to  such  charge  or  incumbrance.    En.  March  21,  1872. 

§  1303.  Conveyance,  when  not  a  revocation.  A  convey- 
ance, settlement  or  other  act  of  a  testator,  by  which  his 
interest  in  a  thing  previously  disposed  of  by  his  will  is 
altered,  but  not  wholly  divested,  is  not  a  revocation;  but 
the  will  passes  the  property  which  would  otherwise  devolve 
by  succession.    En.  March  21,  1872. 

See  post,  sees.  1304,  1310. 

Ademption  of  legacies:    See   post,  sec.  1357. 

§  1304.  When  it  is  a  revocation.  If  the  instrument  by 
which  an  alteration  is  made  in  the  testator's  interest  in  a 


§§1305-1308       EXECUTION   AND   REVOCATION  OF   WILLS.       310 

thing  previously  disposed  of  by  his  will  expresses  his  intent 
that  it  shall  be  a  revocation,  or  if  it  contains  provisions 
wholly  inconsistent  with  the  terms  and  nature  of  the  testa- 
mentary disposition,  it  operates  as  a  revocation  thereof, 
unless  such  inconsistent  provisions  depend  on  a  condition 
or  contingency  by  reason  of  which  they  do  not  take  effect. 
En.  March  21,  1872. 

§  1305.  Revocation  of  codicils.  The  revocation  of  a  will 
revokes  all  its  codicils.     En.  March  21,  1872. 

§  1306.  Afterborn  ciiiid,  unprovided  for,  to  succeed. 
Whenever  a  testator  has  a  child  born  after  the  making  of 
his  will,  either  in  his  lifetime  or  after  his  death,  and  dies 
leaving  such  child  unprovided  for  by  any  settlement,  and 
neither  provided  for  nor  in  any  way  mentioned  in  his  will, 
the  child  succeeds  to  the  same  portion  of  the  testator's 
real  and  personal  property  that  he  would  have  succeeded 
to  if  the  testator  had  died  intestate.    En.  March  21,  1872. 

Cal.Rep.Cit.  57,  490  ;   88,  585 ;   113,  376. 

§  1307.  Children  or  issue  of  children  of  testator  unpro- 
vided for  by  his  will.  When  any  testator  omits  to  provide 
in  his  will  for  any  of  his  children,  or  for  the  issue  of  any 
deceased  child,  unless  it  appears  that  such  omission  was 
intentional,  such  child,  or  the  issue  of  such  child,  must 
have  the  same  share  in  the  estate  of  the  testator  as  if  ho 
had  died  intestate,  and  succeeds  thereto  as  provided  in 
the  preceding  section.    En.  March  21,  1872. 

Cal.Rep.Cit.      57,  4S9 ;      57,491;      81,575;      83,328;      86,443; 
88,  585;      99,  647;   107,  616;   119,  573. 

§  1308.  Share  of  afterborn  child,  out  of  what  part  of 
estate  to  be  paid.  When  any  share  of  the  estate  of  a 
testator  is  assigned  to  a  child  born  after  the  making  of  a 
will,  or  to  a  child,  or  the  issue  of  a  child,  omitted  in  the 
will,  as  hereinbefore  mentioned,  the  same  must  first  be 
taken  from  the  estate  not  disposed  of  by  the  will,  if  any; 
if  that  is  not  sufficient  so  much  as  may  be  necessary 
must  be  taken  from  all  the  devisees  or  legatees,  in  pro- 
portion to  the  value  they  may  respectively  receive  under 
the  will,  unless  the  obvious  intention  of  the  testator  in 
relation  to  some  specific  devise  or  bequest,  or  other  pro- 


311       EXECUTION   AND    REVOCATION   OF   WILLS.       §§  1309-1312 

vision  in  the  will,  would  thereby  be  defeated;  in  such 
case,  such  specific  devise,  legacy,  or  provision  may  be 
exempted  from  such  apportionment,  and  a  different  appor- 
tionment, consistent  with  the  intention  of  the  testator,  may 
be  adopted.     En.  March  21,  1872. 

§  1309.  Advancement  during  lifetime  of  testator.  If 
such  children,  or  their  descendants,  so  unprovided  for,  had 
an  equal  proportion  of  the  testator's  estate  bestowed  on 
them  in  the  testator's  lifetime,  by  way  of  advancement, 
they  take  nothing  in  virtue  of  the  provisions  of  the  three 
preceding  sections.     En.  March  21,  1872. 

Advancements,  question  of,  when  raised:  See  Code  Civ. 
Proc,  sec.  1686. 

Advancements  in  cases  of  intestacy:    See  sees.  1395-1399. 

§  1310.  Death  of  devisee,  being  relation  of  testator,  in 
lifetime  of  testator,  leaving  lineal  descendants.  When  any 
estate  is  devised  to  any  child,  or  other  relation  of  the 
testator,  and  the  devisee  dies  before  the  testator,  leaving 
lineal  descendants,  such  descendants  take  the  estate  so 
given  by  the  will,  in  the  same  manner  as  the  devisee  would 
have  done  had  he  survived  the  testator.  En.  March  21, 
1872. 

"By  right  of  representation"  defined:    Post,  sec.  1403. 

Death  of  legatee — Legacy  fails,  when:  See  sees.  1343, 
1344. 

§  1311.  Devises  of  land,  how  construed.  Every  devise 
of  land  in  any  will  conveys  all  the  estate  of  the  devisor 
therein,  which  he  could  lawfully  devise,  unless  it  clearly 
appears  by  the  will  that  he  intended  to  convey  a  less 
estate.    En.  March  21,  1872. 

See  ante,  sec.  1303. 

§  1312.  Will  to  pass  rights  acquired  after  the  making 
thereof.  Any  estate,  right,  or  interest,  in  lands  acquired 
by  the  testator  after  the  making  of  his  will,  passes  thereby 
and  in  like  manner  as  if  title  thereto  was  vested  in 
him  at  the  time  of  making  the  will,  unless  the  contrary 
manifestly  appears  by  the  will  to  have  been  the  intention 
of  the  testator.  Every  will  made  in  express  terms  devising. 


§  1313  EXECUTION    AND    REVOCATION    OF    WILLS.  312 

or  in  any  other  terms  denoting  the  intent  of  the  testator 
to  devise  all  the  real  estate  of  such  testator,  passes  all 
the  real  estate  which  such  testator  was  entitled  to  devise 
at  the  time  of  his  decease.  En.  March  21,  1S72.  Am'd. 
1873-4,  233. 

Testamentary  dispositions  vest  at  testator's  death:  Post, 
sec.  1341. 

§  1313.     Restriction    on    devise   for  charitable    uses.     No 

estate,  real  or  personal,  shall  be  bequeathed  or  devised  to 

any  charitable  or  benevolent  society,  or  corporation,  or  to 

any  person  or  persons  in  trust  for  charitable  uses,  except 

the  same  be  done  by  will  duly  executed   at  least  thirty 

days  before  the  decease  of  the  testator;   and  if  so  made, 

at  least  thirty  days  prior  to  such  death,  such  devise  or 

legacy,  and  each  of  them,  shall  be  valid;  provided,  that  no 

such    devises    or   bequests    shall    collectively    exceed    one 

third  of  the  estate  of  the  testator  leaving  legal  heirs,  and 

in  such  case  a  pro  rata  deduction  from  such  devises  or 

bequests   shall    be   made   so   as   to    reduce   the   aggregate 

thereof  to  one  third  of  such  estate;  and  all  dispositions  of 

property  made  contrary  hereto   shall   be   void,   and   go  to 

the   residuary   legatee  or  devisee,   next  of   kin,   or  heirs, 

according  to  law.     En.  Stats.  1873-4,  275. 

Cal.Rep.Cit.      58,470;      58,484;      58,485; 
58,516;      58,517;      63.622;      94,378; 

98,  611;    105,  647;    123,  624;  126,  301 

138,  434;   138,  436;    138,  547;  138,  548 

Charitable  uses  permitted  by  the  codes:    See  ante,  sees. 
847  et  seq. 


58,  511;  58,  514 

94,  379;  98,  606 

127,     96;  128,     12 

138,  550;  138,  557 


313 


INTERPRETATION     OF     WILLS. 


§§ 1317, 1318 


CHAPTER    II. 

INTERPRETATION     OF     WILLS,     AND     EFFECT     OF     VARIOUS 
PROVISIONS. 

§   1317.  Testator's  intention  to  be  carried  out. 

§   1318.  Intention  to  be  ascertained  from  the  will. 

§   1319.  Rules  of  interpretation. 

§   1320.  Several    instruments   are   to   be   taken   together. 

§   1321.  Harmonizing  various  parts. 

§   1322.  In  what  case  devise  not  affected. 

§  1323.  When    ambiguous   or    doubtful. 

§   1324.  Words  taken   in  ordinary  sense. 

§   1325.  Words   to   receive   an    operative   construction. 

§   1326.  Intestacy  to   be   avoided. 

§   1327.  Effect   of  technical   words.  • 

§   1328.  Technical   v.'ords  not  necessary. 

§   1329.  Certain  words  not  necessary  to  pass  a  fee. 

§   1330.  Power  to  devise,   how   executed  by  terms  of  will. 

§   1331.  Devise  or  bequest   of  all   real   or   all  personal   property,   or 

both. 

§   1332.  Residuary  clause. 

§   1333.  Same. 

§   1334.  "Heirs,"    "relatives,"    'issue,"    "descendants,"    etc. 

§   1335.  Words  of  donation  and  of  limitation. 

§   1336.  To   what   time   words   refer. 

§   1337.  Devise  or   bequest   to   a   class. 

§   1338.  When   conversion   takes   effect. 

§   1339.  When  child  born   after  testator's  death  takes  under  will. 

§   1340.  Mistakes  and  omissions. 

§   1341.  When    devises    and   bequests   vest. 

§   1342.  When  cannot  be  divested. 

§   1343.  Death  of  devisee  or  legatee. 

§   1344.  Interests   in   remainder   are  not   affected. 

§   1345.  Conditional   devises   and  bequests. 

§  1346.  Condition  precedent,  what. 

§   1347.  Effect  of  condition  precedent. 

§   1348.  Conditions   precedent,    when    deemed   performed. 

§   1349.  Condition    subsequent,    what. 

§   1350.  Devisees,  etc.,  take  as  tenants  in  common. 

§   1351.  Advancements,  when  ademptions. 

§  1317.  Testator's  intention  to  be  carried  out.  A  will  is 
to  be  construed  according  to  the  intention  of  the  testator. 
Where  his  intention  cannot  have  effect  to  its  full  extent, 
it  must  have  effect  as  far  as  possible.    En.  March  21,  1872. 

Cal.Rep.Cit.      58,  404;      74,  368;      99,  648;    123,  625;    128,     11; 
132,  566;   132,  567;   135,     29;    136,     83;   138,  436. 

Construction   of   will   made   before   the   code   went  into 
effect  not  affected  by  the  code:    Post,  sec.  1375. 
Construction  of  foreign  will:    Post,  sec.  1376. 
Declarations  of  testator  as  evidence:    See  next  section. 


§  1318.     Intention   to    be   ascertained   from   tlie   will.     In 
case  of  uncertainty  arising  upon  the  face  of  a  will,  as  to 

Civ.   Code.— 14 


§§1319-1324  INTERPRETATION     OF    WILLS.  Sll 

the  application  of  any  of  its  provisions,  the  testator's  in- 
tention is  to  be  ascertained  from  the  words  of  the  will 
taking  into  view  the  circumstances  under  which  it  was 
made  exclusive  of  his  oral  declarations.  En.  March  21, 
1872. 

Cal.Rep.Cit.      58,  404;      SI,  243;   107,  308;    108,  659;   123,  341; 
123,  342;    129,  453;    129,  454;    132,  176;    132,  669. 

§  1319.  Rules  of  interpretation.  In  interpreting  a  will, 
subject  to  the  law  of  this  state,  the  rules  prescribed  by  the 
following  sections  of  this  chapter  are  to  be  observed, 
unless  an  intention  to  the  contrary  clearly  appears.  En. 
Marctf   21,   1872. 

§  1320.  Several  instruments  are  to  be  taken  together. 
Several  testamentary  instruments,  executed  by  the  same 
testator,  are  to  be  taken  and  construed  together  as  one 
instrument.     En.  March  21,  1872. 

Cal.Rep.Cit.   104,   568. 

§  1321.  Harmonizing  various  parts.  All  the  parts  of  a 
will  are  to  be  construed  in  relation  to  each  other,  and  so 
as,  if  possible,  to  form  one  consistent  whole;  but  where 
several  parts  are  absolutely  irreconcilable,  the  latter  must 
prevail.     En.  March  21,  1872. 

Cal.Rep.Cit.   58,  404;   94,  674;   132,  668;   138,  435. 

§  1322.  In  what  case  devise  not  affected.  A  clear  and 
distinct  devise  or  bequest  cannot  be  affected  by  any 
reasons  assigned  therefor,  or  by  any  other  words  not 
equally  clear  and  distinct,  or  by  inference  or  argument 
from  other  parts  of  the  will,  or  by  an  inaccurate  recital 
of  or  reference  to  its  contents  in  another  part  of  the  will. 
En.  March  21,  1872. 

Cal.Rep.Cit.   73,  103;   127,  97;   132,  672. 

Intention  of  testator:     See  sees.  1317  et  seq. 

§  1323.  When  ambiguous  cr  doubtful.  Where  the  mean- 
ing of  any  part  of  a  will  is  ambiguous  or  doubtful,  it  may 
be  explained  by  any  reference  thereto,  or  recital  thereof, 
in  another  part  of  the  will.     En.  March  21,  1872. 

§  1324.  Words  taken  in  ordinary  sense.  The  words  of 
a  will  are  to  be  taken  in  their  ordinary  and  grammatical 


315  INTERPRETATION     OF     WILLS.  §§  1325-1331 

sense,  unless  a  clear  intention  to  use  them  in  another 
sense  can  be  collected,  and  th^t  other  can  be  ascertained. 
En.  March  21,  1872. 

Cal.Rep.Cit.  58.  404;   74,  368;   123,  143;   132,  671. 

§  1325.     Words    to     receive    an    operative    construction. 

The  words  of  a  will  are  to  receive  an  interpretation  which 
will  give  to  every  expression  some  effect,  rather  than  one 
which  will  render  any  of  the  expressions  (inoperative.  En. 
March  21,  1872. 

Cal.Rep.Cit.   58.  404  ;   99,  648  ;   132,  177. 

See   ante,  sec.  1321. 

§  1326.  Intestacy  to  be  avoided.  Of  two  modes  of  in- 
terpreting a  will,  tnat  is  to  be  preferred  which  will  prevent 
a  total  intestacy.  En.  March  21,  1872. 

Cal.Rep.Cit.  104,  568;    123,  143;   123,  343;    132,  566. 

§  1327.  Effect  of  technical  words.  Technical  words  in 
a  will  are  to  be  taken  in  their  technical  sense,  unless  the 
context  clearly  indicates  a  contrary  intention.     En.  March 

21,  1872. 

Cal.Rep.Cit.   74,   368. 

§  1328.  Teciinical  words  not  necessary.  Technical  words 
are  not  necessary  to  give  effect  to  any  species  of  disposi- 
tion by  a  will.    En.  March  21,  1872. 

§  1329.  Certain  words  not  necessary  to  pass  a  fee.  The 
term  "  heirs,"  or  other  words  of  inheritance,  are  not 
requisite  to  devise  a  fee,  and  a  devise  of  real  property 
passes  all  the  estate  of  the  testator,  unless  otherwise 
limited.     En.  March  21,  1872. 

Cal.Rep.Cit.   138,  440. 

Words  of  succession  not  necessary  to  transfer  a  fee: 
See    ante,  sec.  1072. 

§  1330.  Power  to  devise,  how  executed  by  terms  of  will. 
Real  or  personal  property  embraced  in  a  power  to  devise 
passes  by  a  will  purporting  to  devise  all  the  real  or  personal 
property  of  the  testator.    En.  March  21,  1872. 

Cal.Rep.Cit.   107,  598;   132,  558. 

§  1331.  Devise  or  bequest  of  all  real  or  all  personal  prop- 
erty,  cr  both.     A  devise  or  bequest  of  all  the  testator's 


§§  1332-1335  INTERPRETATION     OF     WILLS.  318 

real  or  personal  property,  in  express  terms,  or  in  any  other 
terms  denoting  his  intent  to  dispose  of  all  his  real  or  per- 
sonal property,  passes  all  the  real  or  personal  property 
which  he  was  entitled  to  dispose  of  by  will  at  the  time  of 
his  death.     En.  March  21,  1872. 

Cal.Rep.Cit.   81,   242. 

See    ante,  sees.  1303,  1311,  1312. 

General  and  specific  legacies:    See  post,  sec.  1357, 

§  1332.  Residuary  clause.  A  devise  of  the  residue  of 
the  testator's  real  property  passes  all  the  real  property 
which  he  was  entitled  to  devise  at  the  time  of  his  death, 
not  otherwise  effectually  devised  by  his  will.  En.  March 
21,  1872.     Am'd.  1S73-4,  234. 

Cal.Rep.Cit.   107,  416;   127,  92. 

§  1333.  Same.  A  bequest  of  the  residue  of  the  testator's 
personal  property  passes  all  the  personal  property  which 
he  was  entitled  to  bequeath  at  the  time  of  his  death,  not 
otherwise  effectually  bequeathed  by  his  will.  En.  March 
21,  1872.     Am'd.  1873-4,  234. 

Cal.Rep.Cit.   107,  416;   127,  92. 

§  1334.  "Heirs,"  "relatives,"  "issue,"  "descendants," 
etc.  A  testamentary  disposition  to  "  heirs,"  "  relations," 
"  nearest  relations,"  "  representatives,"  "  legal  represen- 
tatives," or  "  personal  representatives,"  or  "  family," 
"  issue,"  "  descendants,"  "  nearest "  or  "  next  of  kin,"  of 
any  person,  without  other  words  of  qualification,  and  when 
the  terms  are  used  as  words  of  donation,  and  not  of 
limitation,  vests  the  property  in  those  who  would  be  en- 
titled to  succeed  to  the  property  of  such  person,  according 
to  the  provisions  of  the  title  on  succession  in  this  code. 
En.  March  21,  1872. 

§  1335.  Words  of  donation  and  of  limitation.  The  terms 
mentioned  in  the  last  section  are  used  as  words  of  dona- 
tion, and  not  of  limitation,  when  the  property  is  given  to 
the  person  so  designated  directly,  and  not  as  a  qualification 
of  an  estate  given  to  the  ancestor  of  such  person.  En. 
March  21,  1872. 

Rule  of  Shelly 's  case  not  adopted  in  this  state:  See 
ante,  sec.  779. 


317  INTERPRETATION     OF     WILLS.  §§  133G-1341 

§  1336.  To  what  time  v/ords  refer.  Words  in  a  will 
referring  to  death  or  survivorship,  simply,  relate  to  the 
time  of  the  testator's  death,  unless  possession  is  actually 
postponed,  when  they  must  be  referred  to  the  time  of 
possession.     En.  March  21,  1872. 

Cal.Rep.Cit.   114,   190. 

§  1337.  Devise  or  bequest  to  a  class.  A  testamentary 
disposition  to  a  class  includes  every  person  answering  the 
description  at  the  testator's  death;  but  when  the  posses- 
sion is  postponed  to  a  future  period,  it  includes  also  all 
persons  coming  within  the  description  before  the  time 
to  which  possession  is  postponed.     En.  March  21,  1872. 

Cal.Rep.Cit.   79,  625;    119,  410;   132,  578. 

Posthumous  children:    See    infra,  sec.  1339. 

§  1338.  When  conversion  takes  effect.  When  a  will 
directs  the  conversion  of  real  property  into  money,  such 
property  and  all  its  proceeds  must  be  deemed  personal 
property  from  the  time  of  the  testator's  death,  iiin.  March 
21,  1872. 

Cal.Rep.Cit.   Ill,   638. 

§  1339.  When  child  born  after  testator's  death  takes 
under  will.  A  child  conceived  before,  but  not  born  until 
after  a  testator's  death,  or  any  other  period  when  a  dis- 
position to  a  class  vests  in  right  or  in  possession,  takes, 
if  answering  to  the  description  of  the  class.  En.  March  21, 
1872. 

Cal.Rep.Cit.   1S2,   580. 

Child  en  ventre  sa  mere:    See    ante,  sec.  29. 

§  1340.  Mistakes  and  omissions.  When,  applying  a  will, 
it  is  found  that  there  is  an  imperfect  description,  or  that 
no  person  or  property  exactly  answers  the  description, 
mistakes  and  omissions  must  be  corrected,  if  the  error 
appears  from  the  context  of  the  will  or  from  extrinsic 
evidence;  but  evidence  of  the  declarations  of  the  testator 
as  to  his  intentions  cannot  be  received.  En.  March  21, 
1872. 

Cal.Rep.Cit.   108,  659;   119,  575;   123,  241;    127,  94. 

§  1341.  When  devises  and  bequests  vest.  Testamentary 
dispositions,  including  devises  and  bequests  to  a  person  on 


§§  1342-1348  INTERPRETATION     OF     WILLS.  318 

attaining  majority,  are  presumed  to  vest  at  tlie  testator's 
death.    En.  March  21,  1872. 

Cal.Rep.Cit.   73,  102;   122,  627;   132,  578;   137,  355. 

§  1342.  When  cannot  be  divested.  A  testamentary  dis- 
position, when  vested,  cannot  he  divested  unless  upon  the 
occurrence  of  the  precise  contingency  prescribed  by  the 
testator  for  that  purpose.    En.  March  21,  1872. 

§  1343.  Death  of  devisee  or  legatee.  If  a  devisee  or 
legatee  dies  during  the  lifetime  of  the  testator,  the  testa- 
mentary disposition  to  him  fails,  unless  an  intention 
appears  to  substitute  some  other  in  his  place,  except  as 
provided  in  section  thirteen  hundred  and  ten.  En.  March 
21,   1872.     Am'd.  1873-4,   234. 

Cal.Rep.Cit.   98,  606;    134,  324. 

§  1344.  Interests  in  remainder  are  not  affected.  The 
death  of  a  devisee  or  legatee  of  a  limited  interest  before 
the  testator's  death  does  not  defeat  the  interests  of  persons 
in  remainder,  who  survive  the  testator.  En.  March  21, 
1872. 

§  1345.  Conditional  devises  and  bequests.  A  conditional 
disposition  is  one  which  depends  upon  the  occurrence  of 
some  uncertain  event,  by  which  it  is  either  to  take  effect 
or  be  defeated.    En.  March  21,  1872. 

Conditions  of  ownership:     See  ante,  sees.  707  et  seq. 

Conditional  obligations:     See  post,  sees.  1434  et  seq. 

§  1346.  Condition  precedent,  what.  A  condition  pre- 
cedent in  a  will  is  one  which  is  required  to  be  fulfilled 
before  a  particular  disposition  takes  effect.  En.  March  21, 
1872. 

§  1347.  Effect  of  condition  precedent.  Where  a  testa- 
mentary disposition  is  made  upon  a  condition  precedent, 
nothing  vests  until  the  condition  is  fulfilled,  except  where 
such  fulfillment  is  impossible,  in  which  case  the  disposition 
vests,  unless  the  condition  was  the  sole  motive  thereof, 
and  the  impossibility  was  unknown  to  the  testator,  or 
arose  from  an  unavoidable  event  subsequent  to  the  execu- 
tion of  the  will.     En.  March  21,  1872. 

§  1348.  Conditions  precedent,  when  deemed  performed. 
A  condition  precedent  in  a  will  is  to  be  deemed  performed 


319 


GENERAL    PROVISIONS. 


§§ 1349-1351 


when  the  testator's  intention  has  been  substantially,  though 
not  literally,  complied  with.     En.  March  21,  1872. 

§  1349.  Condition  subsequent,  what.  A  condition  sub- 
sequent is  where  an  estate  or  interest  is  so  given  as  to 
vest  immediately,  subject  only  to  be  divested  by  some 
subsequent  act  or  event.     En.  March  21,  1872. 

Cal.Rep.Cit.   98,   381. 

§  1350.  Devisees,  etc.,  take  as  tenants  in  common.  A 
devise  or  legacy  given  to  more  than  one  person  vests  in 
them  as  owners  in  common.     En.  March  21,  1872. 

§  1351.  Advancements,  when  ademptions.  Advance-i 
ments  or  gifts  are  not  to  be  taken  as  ademptions  of  general 
legacies,  unless  such  intention  is  expressed  by  the  testator 
in  writing.     En.  March  21,  1872. 

Advancement  in  cases  of  intestacy:  See  post,  sees.  1395- 
1399. 

CHAPTER    III. 
GENERAL    PROVISIONS    RELATING    TO    WILLS. 

f  1357.     Nature  and  designations  of  legacies : 

1.  Specific. 

2.  Demonstrative. 

3.  Annuities. 

4.  Residuary. 

5.  General. 

I  1358.  Estate  chargeable  in  case  of  intestacy. 

§   1359.  Order  of  resort  to   estate  for  debts. 

§  1360.  Same   for   legacies. 

§  1361.  Legacies,   how   charged  with   debts. 

§  1362.  Abatement. 

§   1363.  Specific   devises  and   legacies. 

§  1364.  Heir's  conveyance   good,   unless  will  is  proved  within  four 

years. 

§  1365.  Possession  of  legatees. 

§  1366.  Bequest   of   interest. 

§   1367.  Satisfaction. 

§   1368.  Legacies,    when   due. 

§  1369.  Interest. 

§  1370.  Construction  of  these  rules. 

§  1371.  Executor  according  to  the  tenor. 

§  1372.  Power  given  executor  to  appoint  is  invalid. 

§   1373.  Executor  not  to  act  till  qualified. 

§   1374.  Provisions  as  to  revocations. 

5  1375.  Execution  and  construcuon  of  prior  wills  not  affected. 

§  1376.  Law  governing   interpretation. 

§  1377.  Liability  of  beneficiaries  for  testator's  obligations. 

§  1357.  Nature  and  designations  of  legacies.  Legacies 
are  distinguished  and  designated,  according  to  their  nature, 
as  follows: 


S§  1357-1359  GENERAL    PROVISIONS.  320 

1.  Specific.  A  legacy  of  a  particular  thing,  specified 
and  distinguished  from  all  others  of  the  same  kind  belong- 
ing to  the  testator,  is  specific;  if  such  legacy  fails,  resort 
cannot  be  had  to  the  other  property  of  the  testator; 

2.  Demonstrative.  Alegacy  is  demonstrative  when  the 
particular  fund  or  personal  property  is  pointed  out  from 
which  it  is  to  be  taken  or  paid;  if  such  fund  or  property 
fails,  in  whole  or  in  part,  resort  may  be  had  to  the  general 
assets,  as  in  case  of  a  general  legacy; 

3.  Annuities.  An  annuity  is  a  bequest  of  certain 
specified  sums  periodically;  if  the  fund  or  property  out 
of  which  they  are  payable  fails,  resort  may  be  had  to  the 
general  assets,  as  in  case  of  a  general  legacy; 

4.  Residuary.  A  residuary  legacy  embraces  only  that 
which  remains  after  all  the  bequests  of  the  will  are  dis- 
charged; 

5.  General.     All    other    legacies    are    general    legacies. 

En.  March  21,  1872. 

Cal.Rep.Cit.      66,  331;      66,  332;      66,  439;      66,  440;   107,  308; 
112,  526.       Subd.   2  —  66,  437.       Subd.   3—119,  136. 

Annuities  commence    at  the  testator's  death:    Post,  sec. 
1368. 
General  legacies,  payable  when:    See   post,  sec.  1368. 

§  1358.  Estate  chargeable  in  case  of  intestacy.  When  a 
person  dies  intestate  all  his  property,  real  and  personal, 
without  any  distinction  between  them,  is  chargeable  with 
the  payment  of  his  debts,  except  as  otherwise  provided  in 
this  code  and  the  Code  of  Civil  Procedure.  En.  March  21, 
1872.     Am'd.  1873-4,  234. 

Cal.Rep.Cit.  66,  439  ;   67,  639. 

All  property  chargeable  with  debts:  Code  Civ.  Proc., 
sec.  1516. 

Debts  to  be  paid  from  what:  Code  Civ.  Proc,  sec.  1516; 
Bees.  1560,  1562  et  seq.  of  the  same;  sec.  1359,  infra. 

Order  of  payment  of  debts:     Code  Civ.  Proc,  sec  1643. 

Provision  for  support  of  the  family:  Code  Civ.  Proc, 
Bees.  1464  et  seq. 

§  1359.  Order  of  resort  to  estate  for  debts.  The  prop- 
erty of  a  testator,  except  as  otherwise  specially  provided 


321  GENERAL    PROVISIONS.  §§  1360-1362 

in  this  code  and  the  Code  of  Civil  Procedure,  must  be 
resorted  to  for  the  payment  of  debts,  in  the  following 
order: 

1.  The  property  wiaich  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  debts; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary 
legatee; 

4.  Property  which  is  not  specifically  devised  or  be- 
queathed and 

5.  All  other  property  ratably.  Before  any  debts  are  paid 
the  expenses  of  the  administration  and  the  allowance  to 
the  family  must  he  paid  or  provided  for.  En.  March  21, 
1872.     Am'd.  1873-4,  234. 

Cal.Rep.Cit.   60,  439;   66,  440.    Subd.  4—66.  331. 

§  1360.  Same  for  legacies.  The  property  of  a  testator, 
except  as  otherwdse  specially  provided  in  this  code  and  the 
Code  of  Civil  Procedure,  must  be  resorted  to  for  the  pay- 
ment of  legacies,  in  the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  legacies. 

2.  Property  not  disposed  of  by  the  will. 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary 
legatee. 

4.  Property  which  is  specifically  devised  or  bequeathed. 
En.  March  21,  1872.     Am'd.  1873-4,  235. 

Cal.Rep.Cit.   66,  332;    66,  439;    66,  440.     Subd.   4—66,  331. 

Payment  of  legacies — When  legacies  are  due:  Post,  sec. 
1368.  When  may  be  paid:  Code  Civ.  Proc,  sees.  1G5S  et 
seq. 

Legacies  liable  for  debts:  See  Code  Civ.  Proc,  sees.  1563 
et  seq. 

§  1361.  Legacies,  how  charged  with  debts.  Legacies  to 
husband,  widow,  or  kindred  of  any  class  are  cnargeable 
only  after  legacies  to  persons  not  related  to  the  testator. 
En.  March  21,  1872. 

Cal.Rep.Cit.   66,  438  ;    66,  439  ;   66,  441. 

§  1362.  Abatement.  Abatement  takes  place  in  any  class 
only  as  between  legacies  of  that  class,  unless  a  different 
intention  is  expressed  in  the  will.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  331;   66,  437;    66.  439;   66,  440. 


§§  1363-1367  GENERAL    PROVISIONS.  8C1.' 

§  1363.  Specific  devises  and  legacies.  In  a  specific 
devise  or  legacy,  the  title  passes  by  tlie  will,  but  possession 
can  only  be  obtained  from  the  personal  representative;  and 
he  may  be  authorized  by  the  superior  court  to  sell  the 
property  devised  and  bequeathed,  in  the  cases  herein 
provided.     En.   March   21,   1872.     Am'd.  1880,  8. 

How  title  passes  in  cases  of  intestacy:  See  post,  sec. 
1386. 

§  1364.  Heir's  conveyance  good,  unless  will  is  proved 
within  four  years.  The  rights  of  a  purchaser  or  incum- 
brancer of  real  property,  in  good  faith  and  for  value, 
derived  from  any  person  claiming  the  same  by  succession, 
are  not  impaired  by  any  devise  made  by  the  decedent 
from  whom  succession  is  claimed,  unless  the  instrument 
containing  such  devise  is  duly  proved  as  a  will,  and 
recorded  in  the  office  of  the  clerk  of  the  superior  court 
having  jurisdiction  thereof,  or  unless  written  notice  of  such 
devise  is  filed  with  the  clerk  of  the  county  where  the  real 
property  is  situated,  within  four  years  after  the  devisor's 
death.     En.  March  21,  1872.     Am'd.  1880,  8. 

Recording  will:     See  Code  Civ.  Proc,  sees.  13i4,  1318. 

§  1365.  Possession  of  legatees.  "Where  specific  legacies 
are  for  life  only,  the  first  legatee  must  sign  and  deliver  to 
the  second  legatee,  or,  if  there  is  none,  to  the  personal 
representative,  an  Inventory  of  the  property,  expressing 
that  the  same  is  in  his  custody  for  life  only,  and  that,  on 
his  decease,  it  is  to  be  delivered  and  to  remain  to  the  use 
and  for  the  benefit  of  the  second  legatee,  or  to  the  personal 
representative,  as  the  case  may  be.     En.  March  21,  1872. 

Cal.Rep.Cit.   lOS,   470. 

§  1366.  Bequest  of  interest.  In  case  of  a  bequest  of  the 
interest  or  income  of  a  certain  sum  or  fund,  the  income 
accrues  from  the  testator's  death.    En.  March  21,  1872. 

Annuities  commence  at  testator's  death:    Sec.  1368,  infra. 

Accumulations:     See  ante,  sees.  722  et  seq. 

§  1367.  Satisfaction.  A  legacy,  or  a  gift  in  contempla- 
tion, fear,  or  peril  of  death,  may  be  satisfied  before  death. 
En.  March  21,  1872.     Am'd.  1873-4,   235. 


S23  GENERAL    PROVISIONS.  §§1368-1373 

§  1368.  Legacies,  when  due.  Legacies  are  due  and 
deliverable  at  the  expiration  of  one  year  after  the  testator's 
decease.  Annuities  commence  at  the  testator's  decease. 
EH.  March  2],  1872. 

Cal.Rep.Cit.   50,  246;   107,  309;   112,  524;   112,  527;   119,  135. 

Legacies  payable  after  four  months:  See  Code  Civ. 
Proc,  sec.  ItiiS. 

§  1369.  Interest.  Legacies  bear  interest  from  the  time 
when  they  are  due  and  payable,  except  that  legacies  lor 
maintenance,  or  to  the  testator's  widow,  bear  interest  from 
the  testator's  decease.    En.  March  21,  1872, 

Cal.Rep.Cit.   50,  247;    107,  309;   112,  524;   112,  527;   137,  431. 

§  1370.  Construction  of  tinese  rules.  The  four  preceding 
sections  are  in  all  cases  to  be  controlled  by  a  testator  s 
express  intention.     En.  March  21,  1872. 

Cal.Rep.Cit.   112,   524. 

§  1371.  Executor  according  to  the  tenor.  Where  it  ap- 
pears, by  the  terms  of  a  will,  that  it  was  the  intention  of 
the  testator  to  commit  the  execution  thereof  and  the  ad- 
ministration of  his  estate  to  any  person  as  executor,  such 
person,  although  not  named  executor,  is  entitled  to  letters 
testamentary  in  like  manner  as  if  he  had  been  named 
executor.     En.  March  21,  1872. 

Cal.Rep.Cit.   101,  386  ;   107,  591 ;   124,  47. 

Appointment  oi  executors:  See  Code  Civ.  Proc,  sees. 
]353,  13G5. 

§  1372.  Power  given  executor  to  appoint  is  invalid.  An 
authority  to  an  executor  to  appoint  an  executor  is  void. 
En.  March  21,  1872. 

Executor  of  executor:    See  Code  Civ.  Proc,  sec.  1353. 

§  1373.  Executor  not  to  act  till  qualified.  No  person 
has  any  power,  as  an  executor,  until  he  qualifies,  except 
that,  before  letters  have  been  issued,  he  may  pay  funeral 
charges  and  take  necessary  measures  for  the  preservation 
of  the  estate.     En.  March  21,  1872. 

Qualification:     See  Code  Civ.  Proc,  sec.  1349. 

Qualification  of  executor:  See  Code  Civ.  Proc,  sees. 
1350,  1353,  1365  et  seq. 

Payment  of  debts:    See    supra,  sec.  1359. 


5§  1374-1377  SUCCESSION.  324 

§  1374.  Provisions  as  to  revocations.  The  provisions  of 
this  title  in  relation  to  the  revocation  of  wills  apply  to  all 
wills  made  by  any  testator  living  at  the  expiratioa  of  one 
year  from  the  time  it  takes  effect.     En.  March  21,  1872. 

§  1375.  Execution  and  construction  of  prior  wills  not 
affected.  The  provisions  of  this  title  do  not  impair  the 
validity  of  the  execution  of  any  will  made  before  it  takes 
effect,  or  affect  the  construction  of  any  such  will.  Kn. 
March  21,  1872. 

§  1376.  Law  governing  interpretation.  The  validity  and 
interpretation  of  wills,  wherever  made,  are  governed,  when 
relating  to  property  within  this  state,  by  the  law  of  this 
state.     En.  March  21,  1872.     Am'd.  1873-4,  235. 

§  1377.  Liability  of  beneficiaries  for  testator's  obliga- 
tions. Those  to  whom  property  is  given  by  will  are  liable 
for  the  obligations  of  the  testator  in  the  cases  and  to  the 
extent  prescribed  by  the  Code  of  Civil  Procedure.  En. 
March  21,  1872. 


TITLE    VII. 

SUCCESSION. 

§  1383.  Succession  defined. 

§  1384.  Intestate's  estate,  to  whom  passes. 

§  1385.  Personal   representatives.      (Repealed.) 

§  1386.  Succession  to   and   distribution   of  property. 

§   1387.  Illegitimate   children  to   inherit   in   certain  events. 

§   1388.  The  mother  is  successor  to  illegitimate  child. 

§§  1389-1393.      Degrees  of  kindred,  how  computed. 

§   1394.  Relatives  of  the  half  blood. 

§   1395.  Advancements    constitute   part   of   distributive   share. 

§  1396.  Advancements,    when    too   much,    or   not   enough. 

§   1397.  What  are  advancements. 

§  1398.  Value   of   advancements,   how   determined. 

§  1399.  When  heir,  advanced  to,  dies  before  decedent. 

§  1400.  Inheritance   of   husband   and   wife   from   each    other. 

§   1401.  Distribution  of  the  common   property  on   death  of  wife. 

§  1402.  Distribution   of   commcn    property   on   death   of    husband. 

§  1403.  Inheritance    by    representation. 

§  1404.  Aliens  may  inherit,  when,   and  how. 

§   1405.  Succession    not    claimed,    attorney-general    to    cause    to    be 

sold,    and  proceeds  deposited. 

§   1406.  When  the  property   and   et^tate  escheat  to  the  state. 

§   1407.  Property    escheated    subject    to    charges    as    other    property. 

§  1408.  Successor   liable    for   decedent's    obligations. 


325  SUCCESSION.  §§  1383-1386 

§  1383.     Succession    defined.     Succession    is    the    coming 

in  of  anotlier  to  talie  the  property  of  one  who  dies  without 

disposing  of  it  by  will.     En.  March  21,  1872. 

Cal.Rep.Cit.     52,  298;     88,  586;   112,  394;   112,  399;   132,  612; 
136,   112. 

§  1384.  Intestate's  estate,  to  wiiom  passes.  The  prop- 
erty, both  real  and  personal,  of  one  who  dies  without 
disposing  of  it  by  will,  passes  to  the  heirs  of  i\ie  intestate, 
subject  to  the  control  of  the  probate  court,  and  to  the  pos- 
session of  any  administrator  appointed  by  that  court  for 
the  purposes  of  administration.  En.  March  21,  187Z.  Am'd. 
1873-4,  236. 

Cal.Rep.Cit.     86,  527;     88,  586;      88,  588;   100,  164;   105,  183; 
109,  422;   114,  528;   123,  687;   137,  174. 

Possession  of  personal  representative:  See  Code  Civ. 
Proc,  sees.  1452,  1581. 

§  1385.  Personal  representatives.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  236. 

§  1386.  Succession  to  and  distribution  of  property. 
When  any  person  having  title  to  any  estate  not  other- 
wise limited  by  marriage  contract,  dies  without  disposing 
of  the  estate  by  will,  it  is  succeeded  to  and  must  be 
distributed  unless  otherwise  expressly  provided  in  this 
code  and  the  Code  of  Civil  Procedure,  subject  to  the  pay- 
ment of  his  debts,  in  the  following  manner: 

1.  If  the  decedent  leave  a  surviving  husband  or  wife, 
and  only  one  child,  or  the  lawful  issue  of  one  child,  in 
equal  shares  to  the  surviving  husband,  or  wife  and  child, 
or  issue  of  such  child.  If  the  decedent  leave  a  surviving 
husband  or  wife,  and  more  than  one  child  living,  or  one 
child  living,  and  the  lawful  issue  of  one  or  more  deceased 
children,  one  third  to  the  surviving  husband  or  wife,  and 
the  remainder  in  equal  shares  to  his  children,  and  to  the 
lawful  issue  of  any  deceased  child,  by  right  of  representa- 
tion; but  if  there  be  no  child  of  the  decedent  living  at  his 
death,  the  remainder  goes  to  all  of  his  lineal  descendants; 
and  if  all  of  the  descendants  are  in  the  same  degree  of 
kindred  to  the  decedent,  they  share  equally,  otherwise 
they  take  according  to  the  right  of  representation.  If 
the  decedent  leave  no  surviving  husband  or  wife,  but  leave 


§  13S6  SUCCESSION.  326 

issue,  the  whole  estate  goes  to  such  issue,  and  if  such 
issue  consists  of  moi'e  than  one  child  living,  or  one  child 
living,  and  the  lawful  issue  of  one  or  more  deceased 
children,  then  the  estate  goes  in  equal  shares  to  the 
children  living,  or  to  the  child  living,  and  the  issue  of  the 
deceased  child  or  children  by  right  of  representation. 

2.  If  the  decedent  leave  no  issue,  the  estate  goes  one 
half  to  the  surviving  husband  or  wife,  and  the  other  half 
to  the  decedent's  father  and  mother  in  equal  shares,  and  if 
either  be  dead-  the  whole  of  said  half  goes  to  ihe  other; 
if  there  be  no  father  ok  mother,  then  one  half  goes  in 
equal  shares  to  the  brothers  and  sisters  of  the  decedent, 
and  to  the  children  of  any  deceased  brother  or  sister  by 
right  of  representation.  If  the  decedent  leave  no  issue, 
nor  husband  nor  wife,  the  estate  must  go  to  his  father 
and  mother  in  equal  shares,  or  if  either  be  dead  then  to  the 
other. 

3.  If  there  be  neither  issue,  husband,  wife,  father,'  nor 
mother,  then  in  equal  shares  to  the  brothers  and  sisters 
of  the  decedent,  and  to  the  children  of  any  deceased  brother 
or  sister,  by  right  of  representation. 

5.  If  the  decedent  leave  a  surviving  husband  or  wife, 
and  neither  issue,  father,  mother,  brother,  nor  sister,  the 
whole  estate  goes  to  the  surviving  husband  or  wife. 

6.  If  the  decedent  leave  neither  issue,  husband,  wife, 
father,  mother,  brother,  nor  sister,  the  estate  must  go  to 
the  next  of  kin,  in  equal  degree,  excepting  tuat  when 
there  are  two  or  more  collateral  kindred,  in  equal  degree, 
but  claiming  through  different  ancestors,  those  who  claimed 
through  the  nearest  ancestors  must  be  preferred  to-  those 
claiming  through  an  ancestor  more  remote. 

7.  If  the  decedent  leave  several  children,  or  one  child 
and  the  issue  of  one  or  more  children,  and  any  such  sur- 
viving child  dies  under  age,  and  not  having  been  married, 
all  the  estate  that  came  to  the  deceased  child  by  inheri- 
tance from  such  decedent  descends  in  equal  shares  to  the 
Other  children  of  the  same  parent,  and  to  the  issue  of  any 
such  other  children  who  are  dead,  by  right  of  representa- 
tion. 

8.  If,  at  the  death  of  such  child,  who  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents 


327  SUCCESSION.  S  13S7 

are  also  dead,  and  any  of  tliem  have  left  issue,  the  estate 
that  came  to  such  child  by  inheritance  from  his  parents 
descends  to  the  issue  of  all  other  children  of  the  same 
parent;  and  if  all  the  issue  are  in  the  same  degree  of  kin- 
dred to  the  child,  they  share  the  estate  equally,  otherwise 
they  take  according  to  the  right  of  representation. 

9.  If  the  decedent  be  a  widow  or  widower,  and  leave  no 
kindred,  and  the  estate  or  any  portion  thereof  was  com- 
mon property  of  such  decedent,  and  his  or  her  deceased 
spouse,  while  such  a  spouse  was  living,  such  common  prop- 
erty shall  go  to  the  father  of  such  deceased  spouse,  or  if 
he  be  dead,  to  the  mother.  If  there  be  no  father  nor 
mother,  then  such  property  shall  go  to  the  brothers  and 
sisters  of  such  deceased  spouse,  in  equal  shares,  and  to 
the  lawful  issue  of  any  deceased  brother  or  sister  of  such 
deceased  spouse,  by  right  of  representation, 

10.  If  the  decedent  leave  no  husband,  wife,  or -kindred, 

and  there  be  no  heirs  to  take  his  estate  or  any  portion 

thereof,  under  subdivision  nine  of  this  section,  the  same 

escheats  to  the  state,  for  the  support  of  common  schools. 

En.  March  21,  1872.    Am'd.  1873-4,  236;  1880,  14. 

Cal.Rep.Cit.  63,  416;      75,  219;  76,  531;      81,  438;      84,  495; 

88,  586;  110,  526;   110,  527;  123,  687;    123,  688;    131,  434; 

131,  435;  132  ,217;  132,  613;  136,  112;  138,  548;  138,  549; 
138,  550;  138,  551.  Subd.  1—130,  322.  Siibd.  2  —  78,  588; 
114,  465;  117,  285;    132,  215.  Subd.    3—114,  465;    117,  285; 

132,  526.  Subd.  5  —  78,  587;  88,  620;  124,  129;  132,  215; 
132,  612.  Subd.   6—110,  526. 

Administration  of  intestates'  estates:  See  Code  Civ. 
Proc,  sees.  1365  et  seq. 

§  1387.  Illegitimate  children  to  inherit  in  certain  events. 
Every  illegitimate  child  is  an  heir  of  the  person  who,  in 
writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledges- himself  to  be  the  father  of  such  child;  and 
in  aU  cases  is  an  heir  of  his  mother;  and  inherits  nis  or  her 
estate,  in  whole  or  in  part,  as  the  case  may  be,  in  the  same 
manner  as  if  he  had  been  born  in  lawful  wedlock;  but  he 
does  not  represent  his  father  or  mother  by  inheriting  any 
part  of  the  estate  of  his  or  her  kindred,  either  lineal  or  col- 
lateral, unless,  before  his  death,  his  parents  shall  have 
intermarried,  and  his  father,  after  such  marriage,  ac- 
knowledges him  as  his  child,  or  adopts  him  into  his  family; 
in  which  case  such  child  and  all  the  legitimate  children  are 


§5  1388-1392  SUCCESSION.  328 

considered  brothers  and  sisters,  and  on  the  death  of  either 
of  them,  intestate,  and  without  issue,  the  others  inherit 
his  estate,  and  are  heirs,  as  hereinbefore  provided,  in  like 
manner  as  if  all  the  children  had  been  legitimate;  saving 
to  the  father  and  mother  respectively  their  rights  in  the 
estates  of  all  the  children  in  like  manner  as  if  all  had  been 
legitimate.  The  issue  of  all  marriages  null  in  law  or  dis- 
solved by  divorce,  are  legitimate.    En.  March  21,  1872. 


Cal.Rep.Cit. 

52, 

87; 

57, 

491; 

63, 

415; 

63, 

416; 

81, 

421; 

81,  422; 

81, 

442; 

81, 

447  ; 

96, 

557; 

96. 

581; 

96, 

582; 

96.  588; 

96. 

591; 

96, 

594; 

102, 

262; 

112, 

693; 

127, 

434. 

§  1388.     The    mother    is   successor   to    illegitimate   child. 

If  an  illegitimate  child,  who  has  not  been  acknov/ledged  or 
adopted  by  his  father,  dies  intestate,  without  lawful  issue, 
his  estate  goes  to  his  mother,  or,  in  case  of  her  decease, 
to  her  heirs  at  law.     En.  March  21,  1872. 
Cal.Rep.Cit.   63,  415  ;    63,  417. 

§  1389.  Degrees  of  kindred,  how  computed.  The  degree 
of  kindred  is  established  by  the  number  of  generations, 
and  each  generation  is  called  a  degree.    En.  March  21,  1872. 

§  1390.  Degrees  of  kindred,  how  computed.  The  series 
of  degrees  forms  the  line;  the  series  of  degrees  between 
persons  who  descend  from  one  another  is  called  direct  or 
lineal  consanguinity;  and  the  series  of.  degrees  between 
persons  who  do  not  descend  from  one  another,  but  spring 
from  a  common  ancestor,  is  called  the  collateral  line  or 
collateral  consanguinity.     En.  March  21,  1872. 

§  1391.  Degrees  of  kindred,  how  computed.  The  direct 
line  is  divided  into  a  direct  line  descending  and  a  direct 
line  ascending.  The  first  is  that  which  connects  the  an- 
cestors with  those  who  descend  from  him.  The  second  is 
that  which  connects  a  person  with  those  from  whoiji  he 
descends.    En.  March  21,  1872. 

§1392.  Degrees  of  kindred,  how  computed.  In  the  di- 
rect line  there  are  as  many  degrees  as  there  are  genera- 
tions. Thus,  the  son  is,  with  regard  to  the  father,  in  the 
first  degree;  the  grandson  in  the  second;  and  vice  versa 
with  regard  to  the  father  and  grandfather  toward  the  sons 
and  grandsons.    En.  March  21,  1872, 


S2&  SUCCESSION.  §§  1393-1396 

§  1393.  Degrees  of  kindred,  how  computed.  In  the  col- 
lateral line  the  degrees  are  counted  by  generations  from 
one  of  the  relations  up  to  the  common  ancestor,  and  from 
the  common  ancestor  to  the  other  relations.  In  such  com- 
putation the  decedent  is  excluded,  the  relative  included, 
and  the  ancestor  counted  but  once.  Thus,  brothers  are 
related  in  the  second  degree;  uncle  and  nephew  in  the 
third  degree;  cousins  german  in  the  fourth,  and  so  on. 
En.  March  21,  1S72. 

Cal.Rep.Cit.   105,  557  ;   105,  558. 

§  1384.  Relatives  of  the  half  blood.  Kindred  of  the  half 
blood  inherit  equally  with  those  of  the  whole  blood  in  the 
same  degree,  unless  the  inheritance  come  to  the  intestate 
by  descent,  devise  or  gift  of  some  one  of  his  ancestors,  in 
which  case  all  those  who  are  not  of  the  blood  of  such  an- 
cestors must  be  excluded  from  such  inheritance.  En. 
March  21,  1872. 

Cal.Rep.Cit.   110,  527;   131,  434;   131,  435;   132,  216;   132,  217. 

Kindred  of  half  blood  as  administrators:  See  Coae  Civ. 
Proc,  sec.  1366. 

§  1395.  Advancements  constitute  part  of  distributive 
share.  Any  estate,  real  or  personal,  given  by  the  decedent 
in  his  lifetime  as  an  advancement  to  any  child,  or  other 
lineal  descendant,  is  a  part  of  the  estate  of  the  decedent  for 
the  purposes  of  division  and  disti'ibution  thereof  among  his 
issue,  and  must  be  taken  by  such  child,  or  other  lineal  de- 
scendant, toward  his  share  of  the  estate  of  the  decedent. 
En.  March  21,  1872. 

Cal.Rep.Cit.  74,   132. 

Advancements:    See  sees.  1309,  1351,  ante. 

§  1396.  Advancements,  when  too  much,  or  not  enough. 
If  the  amount  of  such  advancement  exceeds  the  share  of 
the  heir  receiving  the  same,  he  must  be  excluded  from  any 
further  portion  in  the  division  and  distribution  of  the 
estate,  but  he  must  not  be  required  to  refund  any  part  of 
such  advancement;  and  if  the  amount  so  received  is  less 
than  his  share,  he  is  entitled  to  so  much  more  as  will  give 
him  his  full  share  of  the  estate  of  the  decedent.  En.  March 
21,  1872. 


5§  1397-1401  SUCCESSION.  £30 

§  1397.  What  are  advancements.  All  gifts  and  grants 
are  made  as  advancements,,  if  expressed  in  the  gift  or 
grant  to  be  so  made,  or  if  charged  in  writing  by  the  dece- 
dent as  an  advancement,  or  acknowledged  in  writing  as 
such,  by  the  child  or  other  successor  or  heir.  En.  March 
21,  1872. 

§  1398.     Value  of  advancements,  how  determined.     If  the 

value  of  the  estate  so  advanced  is  expressed  in  the  con- 
veyance, or  in  the  charge  thereof  made  by  the  decedent,  or 
in  the  acknowledgment  of  the  party  receiving  it,  it  must  be 
held  as  of  that  value  i^i  the  division  and  distribution  of  the 
estate;  otherwise,  it  must  be  estimated  according  to  its 
value  when  given,  as  nearly  as  the  same  can  be  ascer- 
tained.   En.  March  21,  1872. 

§  1399.  When  heir,  advanced  to,  dies  before  decedent. 
If  any  child,  or  other  lineal  descendant  receiving  advance- 
ment, dies  before  the  decedent,  leaving  issue,  the  advance- 
ment must  be  taken  into  consideration  in  the  division  and 
distribution  of  the  estate,  and  the  amount  thereof  must  be 
allowed  accordingly  by  the  representatives  of  the  heirs  re- 
ceiving the  advancement,  in  like  manner  as  if  the  advance- 
ment had  been  made  directly  to  them.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,   132. 

§  1400.  Inheritance  of  husband  and  wife  from  each 
other.  The  provisions  of  the  preceding  sections  of  this 
title,  as  to  the  inheritance  of  the  husband  and  wife  from 
each  other,  apply  only  to  the  separate  property  of  the  de- 
cedents.   En.  March  21,  1872. 

Cal.Rep.Cit.   112,   394. 

§  1401.  Distribution  of  the  common  property  on  death  of 
wife.  Upon  the  death  of  the  wife,  the  entire  community 
property,  without  administration,  belongs  to  the  surviving 
husband,  except  such  portion  thereof  as  may  have  been  set 
apart  to  her  by  judicial  decree,  for  her  support  and  main- 
tenance, which  portion  is  subject  to  her  testamentary  dis- 
position, and  in  the  absence  of  such  disposition,  goes  to 
her  descendants,  or  heirs,  exclusive  of  her  husband.  En. 
March  21,  1872.     Am'd.  1873-4,  238. 

Cal.Rep.Cit.      63,     14;      74,525;      80,209;      88,287;   110    290: 
112,  395;   126,     33. 


331  SUCCESSION.  §§  1402-1405 

§  1402.  Distribution  of  common  property  on  death  of 
husband.  "Upon  the  death  of  the  husband,  one  half  of  the 
community  property  goes  to  the  surviving  wife,  and  the 
other  half  is  subject  to  the  testamentary  disposition  of 
the  husband,  and  in  the  absence  of  such  disposition,  goes  to 
his  descendants,  equally,  if  such  descendants  are  in  the 
same  degree  of  kindred  to  the  decedent;  otherwise,  accord- 
ing to  the  right  of  representation;  and  in  the  absence  of 
both  such  disposition  and  such  descendants,  is  subject  to 
distribution  in  the  same  manner  as  the  separate  property 
of  the  husband.  In  case  of  the  dissolution  of  the  com- 
munity by  the  death  of  the  husband,  the  entire  community 
property  is  equally  subject  to  his  debts,  the  family  allow- 
ance, and  the  charges  and  expenses  of  administration.  En. 
March  21,  1872. 

Cal.Rep.Cit.  77,314;  81,242;  81,243;  88,586;  88,588; 
100,  163;  100,  164;  106,  612;  112,  395;  112,  399;  113,  688; 
117,  515;   120,     92. 

Community  property  defined:    Sees.  1G3,  164,  ante. 

§  1403.  Inheritance  by  representation.  Inheritance  or 
succession  "by  right  of  representation"  takes  place  when 
the  descendants  of  any  deceased  heir  take  the  same  share 
or  right  in  the  estate  of  another  person  that  their  parents 
would  have  taken  if  living.  Posthumous  children  are  con- 
sidered as  living  at  the  death  of  their  parents.  En.  March 
21,  1872. 

See  sec.  1310,  ante. 

§  1404.  Aliens  may  inherit,  when,  and  how.  Resident 
aliens  may  take  in  all  cases  by  succession  as  citizens;  and 
no  person  capable  of  succeeding  under  the  provisions  of 
this  title  is  precluded  from  such  succession  by  reason  of 
the  alienage  of  any  relative;  but  no  nonresident  foreigner 
can  take  by  succession  unless  he  appears  and  claims  such 
succession  within  five  years  after  the  death  of  the  dece- 
dent to  whom  he  claims  succession.    En.  March  21,  1872. 

Cal.Rep.Cit.   129,   90. 

Aliens  may  take  by  succession:     See  sees.  671,  672,  ante. 

§  1405.  Succession  not  claimed,  attorney-general  to 
cause  to  be  sold,  and  proceeds  deposited.  Wiien  succes- 
sion is  not  claimed  as  provided  in  the  preceding  section. 


§§1406-1408  SUCCESSION.  332 

the  district  court,  on  information,  must  direct  the  attorney- 
general  to  reduce  the  property  to  his  or  the  possession  of 
the  state,  or  to  cause  the  same  to  be  sold,  and  the  same  or 
the  proceeds  thereof  to  be  deposited  in  the  state  treasury 
for  the  benefit  of  such  nonresident  foreigner,  or  his  legal 
representative,  to  be  paid  to  him  whenever,  within  five 
years  after  such  deposit,  proof  to  the  satisfaction  of  the 
state  comptroller  and  treasurer  is  produced  that  he  is  en- 
titled to  succeed  thereto.  En.  March  21,  1872. 
Cal.Rep.Cii.  76,  297;   76,  298;   129,  90. 

§  1406.  When  the  property  and  estate  escheat  to  the 
state.  When  so  claimed,  the  evidence  and  the  joint  order 
of  the  comptroller  and  treasurer  must  be  filed  by  the 
treasurer  as  his  voucher,  and  the  property  delivered  or  the 
proceeds  paid  to  the  claimant  on  filing  his  receipt  therefor. 
If  no  one  succeeds  to  the  estate  or  the  proceeds,  as  herein 
provided,  the  property  of  the  decedent  devolves  and  es- 
cheats to  the  people  of  the  state,  and  is  placed  by  the 
state  treasurer  to  the  credit  of  the  school  fund.  En.  March 
21,  1872. 
Cal.Rep.Cit.  76,  297;   76,  298;   129,  90. 

§  1407.  Property  escheated  subject  to  charges  as  other 
property.  Real  property  passing  to  the  state  under  the 
last  section,  whether  held  by  the  state  or  its  officers,  is 
subject  to  the  same  charges  and  trusts  to  which  it  would 
have  been  subject  if  it  had  passed  by  succession,  and  is 
also  subject  to  all  the  provisions  of  title  VIII,  part  III,  of 
the  Code  of  Civil  Procedure.    En.  March  21,  1872. 

Cal.Rep.Cit.  76,  297;   76,  298;   76,  299. 

Title  VIII,  part  III,  Code  Civ.  Proc:    See  sees.  1369-1372. 

§  1408.  Successor  liable  for  decedent's  obligations. 
Those  who  succeed  to  the  property  of  a  decedent  are  liable 
for  his  obligations  in  the  cases  and  to  the  extent  pre- 
scribed by  the  Code  of  Civil  Procedure.    En.  March  21,  1872. 


833  WATER     RIGHTS.  §§  1-110-1412 


TITLE    VIII. 

WATER    RIGHTS. 

i  1410.  Rights  to  water  may  be  acquired  by  appropriation. 

§  1411.  Appropriation   must   be   for   a   useful   purpose. 

§  1412.  Point  of  diversion  may  be  changed. 

§  1413.  Water  may  be  turned  into  natural  channels. 

§  1414.  First  in  time,  first  in   right. 

§  1415.  Notice  of   appropriation. 

§  1416.  Worli  on   water  rights. 

§  1417.  Completion    defined. 

I  1418.  Doctrine   of    relation    applied. 

§  1419.  Forfeiture. 

§  1420.  Rights  of  present  claimant. 

§  1421.  Recorder  to  keep  book  in  which  to  record  notices. 

§  1422.  Title  not  to  affect  rights  of  riparian  proprietors. 

§  1410.  Rights  to  water  may  be  acquired  by  appropria- 
tion. The  right  to  the  use  of  running  water  flowing  in  a 
river  or  stream,  or  dov/n  a  canyon  or  ravine,  may  be  ac- 
quired by  appropriation.     En.  March  21,  1872. 

Cal.Rep.Cit.      69,368;      69,370;      69,371;      69,372;      69,427; 
69,  452;      91,  190;      95,  616;    101,  112;   122,  158. 

Acts  relating  to  irrigation:  See  General  Laws,  title  Irri- 
gation. 

Rights  of  appropriators  as  between  themselves:  See  sec. 
1414. 

Posting  notice:     Sees.  1415  et  seq. 

§  1411.     Appropriation    must    be    for    a    useful    purpose. 

The  appropriation  must  be  for  some  useful  or  beneficial 

purpose,  and  when  the  appropriator  or  his   successor   in 

interest   ceases   to   use  it  for   such   a   purpose,   the   right 

ceases.  En.  March  21,  1872. 

Cal.Rep.Cit.      69.  307;      69,  369;      69,  452;      79,  574;   110,  126; 
110,  127;   120,     87. 

Appropriation  must  be  evidenced  by  physical  acts:     See 
sec.  1416. 
Amount  of  property  appropriated:     See  sec.  1415. 

§  1412.  Point  of  diversion  may  be  changed.  The  person 
entitled  to  the  use  may  change  the  place  of  diversion,  if 
others  are  not  injured  by  such  change,  and  may  extend 
the  ditch,  flume,  pipe,  or  aqueduct  by  which  the  diversion 


§§1413-1415  WATER    RIGHTS.  334 

is  made  to  places  beyond  that  where  the  first  use  was 
made.    En.  March  21,  1872. 

Cal.Rep.Cit.      69,   369;      69,  452;      96,  217;      98,  340;   106,  665; 
106,  668;    108,     81;    117,  183;   117,  184;    134,  555. 

Changing  point  of  diversion:     See  post,  sec.  1415. 

§  1413.     Water    may    be    turned    into    natural    channels. 

The  water  appropriated  may  be  turned  into  the  channel 
of  another  stream  and  mingled  with  its  water,  and  then  re- 
claimed; but  in  reclaiming  it  the  water  already  appro- 
priated by  another  must  not  be  diminished.  En.  March 
21,  1872. 

Cal.Rep.Cit.   69,  369;   69,  453;    134,  555. 

§  1414.  First  in  time,  first  in  right.  As  between  appro- 
priators,  the  one  first  in  time  is  the  first  in  right.  En. 
March  21,  1872. 

Cal.Rep.Cit.   69,  369  ;   69,  453. 

When  right  begins:     See  sec.  1418. 
Use  of  water,  nature  of:     See  sec.  1411. 
Change  of  use:     See  sec.  1412. 

Rights  of  appropriators  as  against  the  government  and 
its  grantees:     See  sec.  1410. 

§  1415.  Notice  of  appropriation.  A  person  desiring  to 
appropriate  water  must  post  a  notice,  in  writing,  in  a  con- 
spicuous place  at  the  point  of  intended  diversion,  stating 
therein: 

1.  That  he  claims  the  water  there  flowing  to  the  extent 
of  (giving  the  number)  inches,  measured  under  a  four-inch 
pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of 
intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the 
size  of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  in- 
tends to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is 
posted,  be  recorded  in  the  oflice  of  the  recorder  of  the 
county  in  which  it  is  posted. 

After  filing  such  copy  for  record,  the  place  of  intended 
diversion  or  the  place  of  intended  use  or  the  means  by 
which  it  is  intended  to  divert  the  water,  may  be  changed 
by  the  person  posting  said  notice  or  his  assigns,  if  others 


335  WATER    RIGHTS.  §5  1416-1419 

are  not  injured  by  such  change.    This  provision  applies  to 

notices  already  filed  as  well  as  to  notices  hereafter  filed. 

En.  March  21,  1872.     Am'd.  1903,  361. 

Cal.Rep.Cit.  69,369;  80,398;  80,400;  80,401;  80,407; 
82,566;  82,567;  82,568;  86,  11;  99,584;  99,586; 
99,  587;   103,  423. 

Change  of  place  of  diversion:     See  ante,  sec.  1412. 

§  1416.  Work  on  water  rights.  Within  sixty  days  after 
the  notice  is  posted,  the  claimant  must  commence  the  ex- 
cavation or  construction  of  the  works  in  which  he  intends 
to  divert  the  water,  or  the  survey,  road  or  trail  building, 
necessarily  incident  thereto,  and  must  prosecute  the  work 
diligently  and  uninterruptedly  to  completion,  unless  tem- 
porarily interrupted  by  snows  or  rain;  provided,  that  if  the 
erection  of  a  dam  has  been  recommended  by  the  California 
debris  commission  at  or  near  the  place  where  it  is  intended 
to  divert  the  water,  the  claimant  shall  have  sixty  days  after 
the  completion  of  such  dam  in  which  to  commence  the 
excavation  or  construction  of  the  works  in  which  he  in- 
tends to  divert  the  water.  En.  March  21,  1872.  Am'd. 
1895,  70;   1903,  396. 

Cal.Rep.Cit.  69,  369;  75,  486;  SO,  400;  80,  401;  80,  403; 
82,  566;      82,  568;      99,  587. 

Time  from  which  right  of  appropriation  becomes  vested: 
See  sec.  1418. 

§  1417.  Completion  defined.  By  "completion"  is  meant 
conducting  the  waters  to  the  place  of  intended  use.  En. 
March  21,  1872. 

Cal.Rep.Cit.   69,  369;   75,  487. 

§1418.  Doctrine  of  relation  applied.  By  a  compliance 
v/ith  the  above  rules  the  claimant's  right  to  the  use  of  the 
water  relates  back  to  the  time  the  notice  was  posted.  En. 
March  21,  1872. 

Cal.Rep.Cit.  69,370;  80,401;  80,407;  80,408;  82,569; 
99,  586;      99,  587. 

§  1419.  Forfeiture.  A  failure  to  comply  with  such  rules 
deprives  the  claimants  of  the  right  to  the  use  of  the 
water  as  against  a  subsequent  claimant  who  complies 
therewith.     En.  March  21,  1872. 

Cal.Rep.Cit.  69,370;  80.401;  80,403;  80,407;  80,408; 
82,  569;      99,  586;      99,  587. 


111420-1422  "WATER    RIGHTS.  836 

§  1420.  Rights  of  present  claimant.  Persons  who  have 
heretofore  claimed  the  right  to  water,  and  who  have  not 
constructed  worlis  in  which  to  divert  it,  and  who  have  not 
diverted  nor  applied  it  to  some  useful  purpose,  must,  after 
this  title  takes  effect,  and  within  twenty  days  thereafter, 
proceed  as  in  this  title  provided,  or  their  x'ight  ceases.  En. 
March  21,  1872. 

Cal.Rep.Cit.   69,  370;   69,  453;    75,  487. 

§  1421.  Recorder  to  keep  book  in  which  to  record  no- 
tices. The  recorder  of  each  county  must  keep  a  book, 
in  which  he  must  record  the  notices  provided  for  in  this 
title.    En.  March  21,  1872. 

Cal.Rep.Cit.   69,   370. 

§  1422.  Title  not  to  affect  rights  of  riparian  proprietors. 
If  the  place  of  intended  diversion  or  any  part  of  the  route 
of  intended  conveyance  of  water  so  claimed,  be  within, 
and  a  part  of,  any  national  park,  forest  reservation,  or 
other  public  reservation,  and  be  so  shown  in  the  notice  of 
appropriation  of  said  water,  then  the  claimant  shall  have 
sixty  days,  after  the  grant  of  authority  to  occupy  and  use 
such  park  or  reservation  for  such  intended  purpose,  within 
which  to  commence  the  excavation  or  construction  of  said 
works;  provided  that  within  sixty  days  after  the  posting 
of  said  notice  of  appropriation,  as  provided  in  section  1415 
of  the  Civil  Code,  the  claimant  shall  in  good  taitn  com- 
mence (and  thereafter  diligently  and  continuously,  except 
when  temporarily  interrupted  by  snow  or  rain,  prosecute 
to  completion)  such  surveys  and  other  work  as  under  the 
regulations  governing  such  park  or  reservations,  may  be 
required  as  preliminary  to,  or  for  use  with,  an  application 
for  such  authority;  and  provided  also  that  the  claimant 
shall  in  good  faith  on  completion  of  said  survey  and  pre- 
liminary work,  apply  to  the  officer,  board,  or  body,  having 
charge  of  such  park  or  reservation,  for  such  authority,  and 
shall  thereafter,  prosecute  said  application  with  reasonable 
diligence.  En.  March  21,  1872.  Rep.  1887,  114.  En.  1903, 
397. 

Cul.Rep.Cit. 

69,  373; 

69,  426; 

108,     78. 

Acts  relating  to  irrigation:  See  General  Laws,  title 
Irrigation. 


69, 

300; 

69, 

368; 

69, 

370; 

69, 

371; 

69, 

372; 

69, 

374; 

69, 

375; 

69, 

376; 

69, 

378; 

69, 

379; 

69, 

427; 

69, 

428; 

69, 

439; 

69, 

451; 

69. 

453; 

337  HYDRAULIC    MINING.  §§  1424,  1425 

TITLE    IX. 

HYDRAULIC     MINING. 

§  1424.     Where  hydraulic  mining  can  be  carried  on. 
§  1425.     Meaning  of  hydraulic  mining. 

§  1424.     Where  hydraulic  mining  can  be  carried  on.    The 

business  of  hydraulic  mining  may  be  carried  on  within  the 
state  of  California  wherever  and  whenever  the  same  can 
be  carried  on  without  material  injury  to  the  navigable 
streams,  or  the  lands  adjacent  thereto.    En.  Stats.  1893,  337. 

§  1425.  IVIeaning  of  hydraulic  mining.  Hydraulic  min- 
ing, within  the  meaning  of  this  title,  is  mining  by  means 
of  the  application  of  water,  under  pressure,  through  a  noz- 
zle, against  a  natural  bank.    En.  Stats.  1893,  337. 

Cal.Rep.Cit.  111.  676. 


ClT.  Code— 15 


DIVISION  THIRD. 


Part  I.     Obligations    in    General,    §§    1427- 
1543. 

II.     Contracts,  §§   1549-1701. 

III.  Obligations    Imposed    by    Law,    §§ 

1708-1715. 

IV.  Obligations  Arising  from  Particular 

Transactions,  §§    1721-3268. 


345k.  DEFINITION    OF    OBLIGATIONS.         §§  1427,  1423 


PART    I. 


•  OBLIGATIONS    IN    GENERAL. 

Title  L  Definition  of  Obligations,  §§  1427-1428. 

II.  Interpretation  of  Obligations,  §§  1429-1451. 

III.  Transfer  of  Obligations,  §§  1457-1467. 

IV.  Extinction  of  Obligations,  §§  1473-1543. 


TITLE    I. 

DEFINITION    OF    OBLIGATIONS. 

§  1427.      Obligation,   what. 

i  142S.     How    created    and    enforced. 

§  1427.  Obligation,  what.  An  obligation  is  a  legal  duty, 
by  which  a  person  is  bound  to  do  or  not  to  do  a  certain 
thing.     En.  March  21,  1872. 

Cal.Rep.Cit.  56,  218;   134,  588. 

§  1428.  How  created  and  enforced.  An  obligation  arises 
either  from: 

1.  The  contract  of  the  parties;  or, 

2.  The  operation  of  law.  An  obligation  arising  from 
operation  of  law  may  be  enforced  in  the  manner  provided 
by  law,  or  by  civil  action,  or  proceeding.  En.  March.  21, 
1872.     Am'd.  1873-4,  239. 

Cal.Rep.Cit.   56,  218;   110,  385;   134,  588. 


TITLE    IL 

INTERPRETATION    OF    OBLIGATIONS. 

Chapter  I.  General  Rules  of  Interpretation,  §  1429. 

II.  Joint  or  Several  Obligations,  §§  1430-1432. 

III.  Conditional  Obligations,  §§  1434-1442. 

IV.  Alternative  Obligations,  §§  1448-1451. 


(S  1429-1432  JOINT    OR     SEVERAL    OBLIGATIONS.  842 


CHAPTER    I. 

GENERAL    RULES    OF    INTERPRETATION. 
§  1429.     General   rules.  ' 

§  1429.  General  rules.  The  rules  which  govern  the  In- 
terpretation of  contracts  are  prescribed  by  part  II  of  this 
division.  Other  obligations  are  interpreted  by  the  sam# 
rules  by  which  statutes  of  a  similar  nature  are  interpreted. 
En.  March  21,  1872. 

Interpretation  of  contracts:     See  sees.  1635-1661. 

CHAPTER    II. 

JOINT    OR     SEVERAL    OBLIGATIONS. 

S  1430.      Obligations,  joint  or  several,  etc. 

§   1431.      When    joint. 

S   1432.      Contribution   between' joint  parties. 

§  1430.  Obligations,  joint  or  several,  etc.  An  obligation 
imposed  upon  several  pA-sons,  or  a  right  created  in  favor 
of  several  persons,  may  be; 

1.  Joint; 

2.  Several;  or, 

3.  Joint  and  several.    En.  March  21,  1872. 

Cal.Rep.Cit.   69,  620;   129,  239;   129,  241;   129,  243. 

§  1431.  When  joint.  An  obligation  imposed  upon  sev- 
eral persons,  or  a  right  created  in  favor  of  several  per- 
sons, is  presumed  to  be  joint,  and  not  several,  except  in 
the  special  cases  mentioned  in  the  title  on  the  interpreta- 
tion of  contracts.  This  presumption,  in  the  case  of  a  right, 
can  be  overcome  only  by  express  words  to  the  contrary. 
En.  March  21,  1872. 

Cal.Rep.Cit.   69,  620;   127,  150;   129,  243. 

Promise  united  in  by  several,  all  of  whom  receive  some 
benefit,  is  presumed  to  be  joint  and  several:  See  post, 
sec.  1659. 

Promise  in  the  singular,  but  executed  by  several,  is  pre- 
sumed to  be  joint  and  several:     Post,  sec.  1660. 

§  1432.  Contribution  between  joint  parties.  A  party  to 
a  joint,  or  joint  and  several  obligation,  who  satisfies  more 


843  CONDITIONAL    OBLIGATIONS.  §§  1434-1437 

than  his  share  of  the  claim  against  all,  may  require  a  pro- 
portionate contribution  from  all  the  parties  joined  with 
him.    En.  March  21,  1872. 

Cal.Rep.Cit.   117,  202;   130.  254;   132,  482;   135,  93. 

See  post,  sec.  2848.  • 


CHAPTER    III. 

CONDITIONAL    OBLIGATIONS. 

§  1434.  Obligation,   when    conditional. 

§  1435.  Conditions,   kinds  of. 

§  1436.  Conditions   precedent. 

§  1437.  Conditions  concurrent. 

§  1438.  Condition  subsequent. 

S  1439.  Performance,    etc.,    of   conditions,   -when   essential. 

§  1440.  "When  performance,   etc.,   excused. 

§  1441.  Impossible  or  unlawful   conditions  void. 

§  1442.  Conditions   involving  forfeiture,   how  construed. 

§  1434.  Obligation,  when  conditional.  An  obligation  is 
conditional,  when  the  rights  or  duties  of  any  party  thereto 
depend  upon  the  occurrence  of  an  uncertain  event.  En. 
March  21,  1872. 

§  1435.     Conditions,   kinds  of.      Conditions  may  be  pre- 
cedent, concurrent  or  subsequent.     En.  March  21,  1872. 
Conditions  of  ownership:     See    ante,  sees.  707  et  seq. 
Conditional  legacies:    See   ante,  sees.  1345,  1346. 
Conditions  precedent:    See  next  section. 
Conditions  concurrent:     See  sec.  1437,  infra. 
Conditions  subsequent:    See  sec.  1438,  infra. 

§  1436.  Conditions  precedent.  A  condition  precedent  Is 
one  which  is  to  be  performed  before  some  right  dependent 
thereon  accrues,  or  some  act  dependent  thereon  is  per- 
formed.    En.  March  21.  1872. 

Cal.Rep.Cit.   98,   440. 

See    ante,  sees.  707,  708. 

Unlawful  condition  precedent:     See  ante,  sec.  709. 

§  1437.  Conditions  concurrent.  Conditions  concurrent 
are  those  which  are  mutually  dependent,  and  are  to  be 
performed  at  the  same  time.    En.  March  21,  1872. 

Cal.Rep.Cit.  53,  723  ;   87,  59. 


5§  1438-1442  CONDITIONAL    OBLIGATIONS.  844 

§  1438.  Condition  subsequent.  A  condition  subsequent 
is  one  referring  to  a  future  event,  upon  ttie  happening  of 
whicli  the  obligation  becomes  no  longer  binding  upon  the 
other  party,  if  he  choses  to  avail  himself  of  the  condition. 
En.  March  21,  1872. 

See   ante,  sees.  707,  708. 

§  1439.  Performance,  etc.,  of  conditions,  when  essential. 
Before  any  party  to  an  obligation  can  require  another  party 
to  perform  any  act  under  it,  he  must  fulfill  all  conditions 
precedent  thereto  imposed  iipon  himself;  and  must  be  able 
and  offer  to  fulfill  all  conditions  concurrent  so  imposed 
upon  him  on  the  like  fulfillment  by  the  other  party,  except 
as  provided  by  the  next  section.    En.  March  21,  1872. 

Cal.Rep.Cit.   87,  59;   107,  65;   117,  671;   133,  458. 

§  1440.  When  performance,  etc.,  excused.  If  a  party  to 
an  obligation  gives  notice  to  another  before  the  latter  is  in 
default,  that  he  will  not  perform  the  same  upon  his  part, 
and  does  not  retract  such  notice  before  the  time  at  which 
performance  upon  his  part  is  due,  such  other  party  is 
entitled  to  enforce  the  obligation  without  previously  per- 
forming or  offering  to  perform  any  conditions  upon  his 
part  in  favor  of  the  former  party.     En.  March  21,  1872. 

Cal.Rep.Cit.   88,  541;   128,  253. 

Refusal  to  accept  performance  before  the  time  to  perform 
is  equivalent  to  an  offer  of  performance  and  refusal:  Post, 
sec.  1515. 

§  1441.  Impossible  or  unlawful  conditions  void.  A  con- 
dition in  a  contract,  the  fulfillment  of  which  is  impossible 
or  unlawful,  within  the  meaning  of  the  article  on  the  object 
of  contracts,  or  which  is  repugnant  to  the  nature  of  the 
interest  created  by  the  contract,  is  void.  En.  March  21, 
3872. 

Object  of  contracts:     See  post,  sees.  1595  et  seq. 

Unlawful  conditions:     See  ante,  sees.  709  et  seq. 

Conditions,  when  impossible,  within  the  meaning  of  above 
section:     See  post,  sees.  1596  et  seq. 

§  1442.  Conditions  involving  forfeiture,  hew  construed. 
A   condition   involving   a   forfeiture    must   be    strictly   in- 


345  ALTERNATIVE    OBLIGATIONS.  |§  1448-1451 

terpreted  against  the  party  for  whose  benefit  it  is  created. 

En.  March  21,  1S72. 

Cal.Rep.Cit.     76,     56;     87,     37;     92,522;  110,595;   128,288; 
130,     19. 


CHAPTER    IV. 

ALTERNATIVE    OBLIGATIONS. 

f  1448.  Who  has  the  right  of  selection. 

I  1449.  Right  of  Belectiou,  how  ioiit. 

i  1450.  Alternatives    indivisible. 

i  1451.  Nullity  of  one  or  more  of  alternative  obligations. 

§  1448.  Who  has  the  right  of  selectic-n.  If  an  obligation 
requires  the  performance  of  one  or  two  acts  in  the  alter- 
native, the  party  required  to  perform  has  the  right  of 
selection,  unless  it  is  otherwise  provided  by  the  terms  of 
the  obligation.    En.  March  21,  18'i2. 

Cal.Rep.Cit.  119,  601. 

§  1449.  Right  of  selection,  how  lost.  If  the  party  having 
the  right  of  selection  between  alternative  acts  does  not 
give  notice  of  his  selection  to  the  other  party  within  the 
time,  if  any,  fixed  by  the  obligation  for  that  purpose,  or,  if 
none  is  so  fixed,  before  the  time  at  which  the  obligation 
ought  to  be  performed,  the  right  of  selection  passes  to  the 
other  party.    En.  March  21,  1872. 

§  1450.  Alternatives  indivisible.  The  party  having  the 
right  of  selection  between  alternative  acts  must  select  one 
of  them  in  its  entirety,  and  cannot  select  part  of  one  and 
part  of  another  without  the  consent  of  the  other  part}. 
En.  March  21,  1872. 

Cal.Rep.Cit.   82,   50. 

§  1451.  Nullity  of  one  or  more  of  alternative  obligations. 
If  one  of  the  alternative  acts  required  by  an  obligation  is 
such  as  the  law  will  not  enforce,  or  becomes  unlawful  or 
impossible  of  performance,  the  obligation  is  to  be  inter- 
preted as  though  the  other  stood  alone.    En,  March  21,  1872. 

Cal.Rep.Cit.  55,  566;   123.  243. 


881457-1460  TRANSFER    OF    OBLIGATIONS.  846 

TITLE    III. 

TRANSFER    OF    OBLIGATIONS. 

8  1457.  Burden  of  obligation  not  transferable. 

i  1458.  Rights  arising  out  of  obligation  transferable. 

§  145y.  Non-uegotiabJe   instrumenis  may  be  transferred. 

§  1460.  Covenants   running  with    land,    what. 

§  1461.  What  covenants  run  with  land. 

i  1462.  Same. 

§  1463.  Same. 

§  1464.  What  covenants  run  with  land  when  assigns  are  named. 

§  1465.  Who   are  bound   by   covenants. 

§  1466.  Who  are  not. 

§  1467.  Apportionment  of  covenants. 

§  1457.  Burden  of  obligation  not  transferable.  The  bur- 
den of  an  obligation  may  be  transferred  with  the  consent 
of  the  party  entitled  to  its  benefit,  but  not  otherwise,  except 
as  provided  by  section  1466.     En.  March  21,  1872. 

Cal.Rep.Cit.  84,  289;  86,  576;  86,  577;  96,  407;  124,  257; 
135,  643. 

§  1458.     Rights  arising  out  of  obligation  transferable.     A 

right  arising  out  of  an  obligation  is  the  property  of  the 
person  to  whom  it  is  due,  and  may  be  transferred  as  such. 
En.  March  21,  1872. 

Cal.Rep.Cit.   84,  283  ;   84,  288. 

Assignment  of  things  in  action:    See   ante,  sec.  954. 

§  1459.     Non-negotiable  instruments  may  be  transferred. 

A  non-negotiable  written  contract  for  the  payment  of  money 
or  personal  property  may  be  transferred  by  indorsement, 
in  like  manner  with  negotiable  instruments.  Such  indorse- 
ment shall  transfer  all  the  rights  of  the  assignor  under  the 
instrument  to  the  -assignee,  subject  to  all  equities  and 
defenses  existing  in  favor  of  the  maker  at  the  time  of  the 
indorsement.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,129;  55,566;  84,283;  86,576;  94,145; 
101,  288;  107,  62;  108,  29;  129.  412;  132,  584;  133,  685; 
134,     410. 

Negotiable  instruments,  what  are:  See  post,  sees.  3087 
et  seq. 

§  1460.  Covenants  running  with  land,  what.  Certain 
covenants,  contained  in  grants  of  estates  in  real  property, 
are  appurtenant  to  such  estates,  and  pass  with  them,  so 
as  to  bind  the  assigns  of  the  covenantor  and  to  vest  in  the 


347  TRANSFER     OF     OBLIGATIONS.  §§  1461-1464 

assigns  of  the  covenantee,  in  the  same  manner  as  if  they 
had   personally   entered   into   them.     Such   covenants   are 
said  to  run  with  the  land.     En.  March  21,  1872. 
Cal.Rep.Cit.   80,  118;    80,  534;   SO,  538;   119,  294, 

Implied  covenants:    See,  ante,  sec.  1113. 
Covenants  running  with  land:     See  the  succeeding  sec- 
tions of  this  title,  especially  sees.  1462,  1464. 

§  1461.  What  covenants  run  with  land.  The  only  cov- 
enants which  run  with  the  land  are  those  specified  in  this 
title,  and  those  which  are  incidental  thereto.  En.  March 
21,  1872. 

Cal.Rep.Cit.   80,  118;    120,  573;    136,  42. 

§  1462.  Same.  Every  covenant  contained  in  a  grant  of 
an  estate  in  real  property,  which  is  made  for  tne  direct 
benefit  of  the  property,  or  some  part  of  it  then  in  existence, 
runs  with  the  land.     En.  March  21,  1872. 

Cal.Rep.Cit.   80,  118;   92,  95;   136,  41. 

Effect  of  tran.sfer's  generally:    See  ante,  sees.  1083  et  seq. 

§  1463.  Same.  The  last  section  includes  covenants  "  of 
warranty,"  "  for  quiet  enjoyment,"  or  for  further  assurance 
on  the  part  of  a  grantor,  and  covenants  for  the  payment 
of  rent,  or  of  taxes  or  assessments  upon  the  land,  on  the 
part  of  a  grantee.     En.  March  21,  1872. 

Damages  for  the  breach  of  the  above  covenants:  See 
post,  sec.  3304. 

Letter  of  real  property  to  secure  quiet  possession  of  the 
hirer:    See  post,  sec.  1927. 

§  1464.  What  covenants  run  with  land  when  assigns  are 
named.  A  covenant  for  the  addition  of  some  new  thing 
to  real  property,  or  for  the  direct  benefit  of  some  part  of 
the  property  not  then  in  existence  or  annexed  thereto, 
when  contained  in  a  grant  of  an  estate  in  such  property, 
and  made  by  the  covenantor  expressly  for  his  assigns  or 
to  the  assigns  of  the  covenantee,  runs  with  land  sb  far 
only  as  the  assigns  thus  mentioned  are  concerned.  En. 
March  21,  1872. 

Cal.Rep.Cit.   66,  420. 

See   ante,  sec.  1462. 


§§  1465-14GV  TRANSFER    OF    OBLIGATIONS.  348 

§  1465.  Who  are  bound  by  covenants.  A  covenant  run- 
ning with  ttie  laud  binds  tliose  only  who  acquire  the  whole 
estate  of  the  covenantor  in  some  part  of  the  property.  En. 
March  21,  1872. 

Cal.Rep.Cit.   73,  5S7  ;  98,  480. 

§  1466.  Who  are  not.  No  one,  merely  by  reason  of 
haviug  acquired  an  estate  subject  to  a  covenant  running 
with  the  land,  is  liable  for  a  breach  of  the  covenant  before 
he  acquired  the  estate,  or  after  he  has  parted  with  it  or 
ceased  to  enjoy  its  benefits.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  421;   73,  587;   80,  534;   96,  407;   116,  88. 

§  1467.  Apportionment  of  covenants.  Where  several  per- 
sons, holding  by  several  titles,  are  subject  to  the  burden  or 
entitled  to  the  benefit  of  a  covenant  running  with  the  land, 
it  must  bfe  apportioned  among  them  according  to  the  value 
of  the  property  subject  to  it  held  by  them  respectively,  if 
such  value  can  be  ascertained,  and  if  not,  then  according 
to  their  respective  interests  in  point  •  of  quantity.  En. 
March  21,  1872. 


849 


PERFORMANCE. 


1473-1475 


TITLE    IV. 

EXTINCTION    OF    OBLIGATIONS. 

Chapter  I.     Performance,  §§  1473-1479. 

II.     Offer  of  Performance,  §§  1485-1505. 

III.  Prevention  of  Performance  or  Offer, 

1515. 

IV.  Accord  and  Satisfaction,  §§  1521-1524. 
V.     Novation,  §§  1530-1533. 

VI.    Release,  §§  1541-1543. 


§§  1511- 


CHAPTER    I. 

PERFORMANCE. 

5  1473.  Obligation   extinguished  by  performance. 

§   1474.  Performance  by  one  of  several  joint  debtors. 

§   1475.  Performance   to   one   of  joint   creditors. 

§  1476.  Effect  of  directions  by  creditors. 

§  1477.  Partial  performance. 

§  1478.  Payment,  what. 

§  1479.  Application  of  general  performance. 

§  1473.     Obligation    extinguished    by    performance.     Full 

performance  of  an  obligation,  by  the  party  whose  duty  it 

is  to  perform  it,  or  by  any  other  person  on  his  behalf,  and 

with  his  assent,  if  accepted  by  the  creditor,  extinguishes  it. 

En.  March  21,  1872. 

Cal.Rep.Cit.     76,  468;      86,  187;   133,  577;   I'SS,  579;  133,  580; 
133,  581;   133,  582;   134,  582. 

§  1474.  Performance  by  one  of  several  joint  debtors. 
Performance  of  an  obligation,  by  one  of  several  persons 
who  are  jointly  liable  under  it,  extinguishes  the  liability 
of  all.    En.  March  21,  1872. 

Cal.Rep.Cit.  121,   653. 

§  1475.  Performance  to  one  of  joint  creditors.  An 
obligation  in  favor  of  several  persons  is  extinguished  by 
performance  rendered  to  any  of  them,  except  in  the  case 
of  a  deposit  made  by  owners  in  common,  or  in  joint  owner- 
ship, which  is  regulated  by  the  title  on  deposit.  En.  March 
21,  1872. 

Cal.Rep.Cit.  96,   278;   131,  425. 


S§  1476-147a  PERFORMANCE.  350 

§  1476.  Effect  of  directions  by  creditors.  If  a  creditor, 
or  any  one  of  two  or  more  joint  creditors,  at  any  time 
directs  the  debtor  to  perform  his  obligation  in  a  particular 
manner,  the  obligation  is  extinguished  by  performance  in 
that  manner,  even  though  the  creditor  does  not  receive  the 
benefit  of  such  performance.    En.  March  21,  1872. 

Cal.Rep.Cit.    76,    644. 

§  1477.  Partial  performance.  A  partial  performance  of 
an  indivisible  obligation  extinguishes  a  corresponding  pro- 
portion thereof,  if  the  benefit  of  such  performance  is 
voluntarily  retained  by  the  creditor,  but  not  otherwise. 
If  such  partial  performance  is  of  such  a  nature  that  the 
creditor  cannot  avoid  retaining  it  without  injuring  his  own 
property,  his  retention  thereof  is  not  presumed  to  be 
voluntary.     En.  March  21,  1872. 

Cal.Rep.Cit.   88,   552. 

§  1478.  Payment,  what.  Performance  of  an  obligation 
for  the  delivery  of  money  only  is  called  payment.  En. 
March  21,  1872. 

Cal.Rep.Cit.   99,   94. 

§  1479.  Application  of  general  performance.  Where  a 
debtor,  under  several  obligations  to  another,  does  an  act, 
by  way  of  performance,  in  whole  or  in  part,  which  is 
equally  applicable  to  two  or  more  of  such  obligations,  such 
performance  must  be  applied  as  follows: 

1.  If  at  the  time  of  performance,  the  intention  or  desire 
of  the  debtor  that  such  performance  should  be  applied  to 
the  extinction  of  any  particular  obligation,  be  manifested 
to  the  creditor,  it  must  be  so  applied. 

2.  If  no  such  application  be  then  made,  the  creditor, 
within  a  reasonable  time  after  such  performance,  may  ap- 
X)ly  it  toward  the  extinction  of  any  obligation,  performance 
of  which  was  due  to  him  from  the  debtor  at  the  time  of  such 
performance;  except  that  if  similar  obligations  were  due 
to  him,  both  individually  and  as  a  trustee,  he  must,  unless 
otherwise  directed  by  the  debtor,  apply  the  performance 
to  the  extinction  of  all  such  obligations  in  equal  propor- 
tion; and  an  application  once  made  by  the  creditor  cannot 
be  rescinded  without  the  consent  of  [the]  debtor. 

3.  If  neither  party  makes   such   application   within  the 


351 


OFFER     OF     PERFORMANCE. 


§1435 


time  prescribed  herein,  the  performance  must  be  applied 
to  the  extinction  of  obligations  in  the  following  order;  and, 
if  there  be  more  than  one  obligation  of  a  particular  class, 
to  the  extinction  of  all  in  that  class,  ratably: 

(1)  Of  interest  due  at  the  time  of  the  performance. 

(2)  Of  principal  due  at  that  time. 

(3)  Of  the  obligation  earliest  in  date  of  maturity. 

(4)  Of  an  obligation  not  secured  by  a  lien  or  collateral 
undertaking. 

(5)  Of   an   obligation    secured    by    a   lien    or    collateral 

undertaking.     En.  March  21,  1872.     Am'd.  1873-4,  239. 

Cal.Rep.Cit.      69,121;      81,     58;      88,391.       Subd.   1  —  81,  406 ; 
114,  625.       Subd.   3  —  97,  292;   119,  302;   125,  488. 


CHAPTER    II. 
OFFER     OF     PERFORMANCE. 

§  1485.  Obligation   extinguished   by   offer   of  performanco, 

§   1486.  Offer   of   partial    performance. 

§   1487.  By  whom  to   be  made. 

§   1488.  To  whom  to  be  made. 

S   1489.  Where  offer  may  be  made. 

§   1490.  When   offer  must  be  made. 

§  1491.  Same. 

§   1492.  Compensation   after  delay  in  performance. 

§  1493.  Offer  to  be  made  in  good  faith. 

§  1494.  Conditional   offer. 

§   1495.  Ability  and  willingness  essential. 

§   1496.  Production  of  thing  to  be  delivered  not  necessary. 

§  1497.  Thing  offered  to  be  kept  separate. 

§   1498.  Performance  of  condition  precedent. 

§   1499.  Written  receipts. 

§  1500.  Extinction  of  pecuniary  obligation. 

§  1501.  Objections  to   mode  of   offer. 

§  1502.  Title  to  thing  offered. 

§  1503.  Custody  of  thing  offered. 

§  1504.  Effect  of  offer  on  accessories  of  obligation. 

§  1505.  Creditor's  retention  of  thing  which  he  refuses  to  accept. 

§  1485.  Obligation  extinguished  by  offer  of  performance. 
An  obligation  is  extinguished  by  an  offer  of  performance, 
made  in  conformity  to  the  rules  herein  prescribed,  and 
with  intent  to  extinguish  the  obligation.  En.  March  21, 
1872. 

Cal.Rep.Cit.   98,   382. 

Tender  of  payment:    See  sees.  1500,  1504,  Infra. 

Tender  of  article  passes  title:  Sec.  1502,  infra;  and  see 
sec.  1504. 

Duties  of  person  making  tender:    See  sec.  1503. 


§§  1486-1490  OFFEh    OP    PERFORMANCE.  852 

§  1486.  Offer  of  partial  performance.  An  offer  of  partial 
performance  is  of  no  effect.    En.  March  21,  1872. 

Cal.Rep.Cit.   127,   4S3. 

§  1487.     By  whom  to  be  made.     An  offer  of  performance 

must  be  made  by  the  debtor,  or  by  some  person  on  his 
behalf  and  with  his  assent.    En.  March  21,  1872. 
Cal.Rep.Cit.  63,  139  ;   119,  303. 

§  1488.  To  whom  to  be  made.  An  offer  of  performance 
must  be  made  to  the  creditor,  or  to  any  one  of  two  or 
more  joint  creditors,  or  to  a  person  authorized  by  one  or 
more  of  them  to  receive  or  collect  what  is  due  under  the 
obligation,  if  such  creditor  or  authorized  person  is  present 
at  the  place  where  the  offer  may  be  made;  and.  if  not, 
wherever  the  creditor  may  be  found.  En.  March  21,  1872. 
Am'd.  1873-4,  240. 

Cal.Rep.Cit.   125,   690. 

See  next  section. 

§  1489.  Where  offer  may  be  made.  In  the  absence  of  an 
express  provision  to  the  contrary,  an  offer  of  performance 
may  be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought  to  be 
made  can  be  found;  or, 

3.  If  such  person  cannot,  with  reasonable  diligence,  be 
found  within  this  state,  and  within  a  reasonable  distance 
from  his  residence  or  place  of  business,  or  if  he  evades  the 
debtor,  then  at  his  residence  or  place  of  business,  if  the 
same  can,  with  reasonable  diligence,  be  found  within  the 
state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this 
state.     En.  March  21,  1872. 

Cal.Rep.Cit.  98,  407;   113,  24;   125.  219. 
Delivery  of  personalty:    See   post,  sees.  1753  et  seq. 
See  post,  sec.  1756,  as  to  giving  notice  of  time  of  delivery 
on  sales  of  personalty. 

§  1490.  When  offer  must  be  made.  Where  an  obligation 
fixes  a  time  for  its  performance,  an  offer  of  performance 
must  be  made  at  that  time,  within  reasonable  hours,  and 
not  before  nor  afterwards.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,  255;    86,  373;   123,  20;   127,  117. 


853  OFFER    OF    PERFORMANCE.  §§1491-1497 

§  1491.  Same.  Where  an  obligation  does  not  fix  the  time 
for  its  performance,  an  offer  of  performance  may  be  made 
at  any  time  before  the  debtor,  upon  a  reasonable  demand, 
has  refused  to  perform.    En.  March  21,  1872. 

Cal.Rep.Cit.  74,  255. 

§  1492.     Compensation      after      delay      in      performance. 

Where  delay  in  performance  is  capable  of  exact  an^  entire 

compensation,  and  time  has  not  been  expressly  declared  to 

be  of  the  essence  of  the  obligation,  an  offer  of  performance, 

accompanied  with  an  offer  of  such  compensation,  may  be 

made  at  any  time  after  it  is  due,  but  without  prejudice  to 

any  rights  acquired  by  the  creditor,  or  by  any  other  person, 

in  the  mean  time.    En.  March  21,  1872. 

Cal.Rep.Cit.     74,  256;     92,  133;     93,  142;      96,  343;     96,  344; 
123,     10 ;  123,     20  ;   133,  445. 

§  1493.  Offer  to  be  made  In  good  faith.  An  offer  of 
performance  must  be  made  in  good  faith,  and  in  such 
manner  as  is  most  likely,  under  the  circumstances,  to 
benefit  the  creditor.    En.  March  21,  1872. 

Cal.Rep.Cit.  130.  143. 

§  1494.  Conditional  offer.  An  offer  of  performance  must 
be  free  from  any  conditions  which,  the  creditor  is  not  bound, 
on  his  part,  to  perform.     En.  March  21,  1872. 

Cal.Rep.Cit.  71.  503 ;   122,  320  ;   125,  690 ;   126,  668. 

Offer  of  performance  upon  condition:  See,  post,  sees. 
1498,  1499. 

§  1495.  Ability  and  willingness  essential.  An  offer  of 
performance  is  of  no  effect  if  the  person  making  it  is  not 
able  and  willing  to  perform  according  to  the  offer.  En. 
March  21,  1872. 

Cal.Rep.Cit.  74,  256;   109,  633. 

§  1496.  Production  of  thing  to  be  delivered  not  neces- 
sary. The  thing  to  be  delivered,  if  any,  need  not  in  any 
case  be  actually  produced,  upon  an  offer  of  performance 
unless  the  offer  is  accepted.    En.  March  21,  1872. 

Cal.Rep.Cit.   97,  151 ;   137,  288. 

§  1497.  Thing  offered  to  be  kept  separate.  A  thing, 
when  offered  by  way  of  performance  must  not  be  mixed 


§§  149S-1502  OFFER    OF    PERFORMANCE.  864 

with  other  things  from  which  it  cannot  be  separated  im- 
mediately and  without  difficulty.     En.  March  21,  1872. 
Vendor  of  personalty  must  put  in  condition  for  delivery: 
Post,  sec.  1753. 

§  1498.  Performance  of  condition  precedent.  When  a 
debtor  is  entitled  to  the  performance  of  a  condition  pre- 
cedent to,  or  concurrent  with,  performance  on  his  part,  he 
may  make  his  offer  to  depend  upon  the  due  performance 
of  such  condition.    En.  March  21,  1872. 

Cal.Rep.Cit.      49,     25;      74,  255;      87,     59;   122,  321;    123,  543: 
125,  690;   137,  289. 

Conditions  precedent:    See   ante,  sec.  1439. 

§  1499.  Written  receipts.  A  debtor  has  a  right  to  re- 
quire from  his  creditor  a  written  receipt  for  any  property 
delivered  in  performance  of  his  obligation.  En.  March  21, 
1872. 

.Cal.Rep.Cit.   49,  25;   125,  690. 

See,  also.  Code  Civ.  Proc,  sec.  2075. 

§  1500.  Extinction  of  pecuniary  obligation.  An  obliga- 
tion for  the  payment  of  money  is  extinguished  by  a  due 
offer  of  payment,  if  the  amount  is  immediately  deposited 
in  the  name  of  the  creditor,  with  some  bank  of  deposit 
within  this  state,  of  good  repute,  and  notice  thereof  is 
given  to  the  creditor.    En.  March  21,  1872. 

Cal.Rep.Cit.      82,     51;      98,395;      98,399;   107,115;   112,     37; 
119,  544;   119,  550;   123,  543;   137,  382. 

Tender  stopping  interest:     See  post,  sec.  1504. 

§  1501.     Objections  to   mode  of  offer.     All  objections  to 

the  mode  of  an  offer  of  performance,  which  the  creditor  has 

an  opportunity  to  state  at  the  time  to  the  person  making 

the  offer,  and  which  could  be  then  obviated  by  him,  are 

waived  by  the  creditor  if  not  then  stated.     En.  March  21, 

1872. 

Cal.Rep.Cit.      73,  530;      79,     43;      87,     59;   109,  564;    122,  320; 
122,  321;    122,  322;   137,  288;   137,  382. 

Similar  provision,  although  more  specific  in  its  require- 
ments:   Code  Civ.  Proc,  sec.  2076. 

§  1502.  Title  to  thing  offered.  The  title  to  a  thing  duly 
offered    in    performance    of    an   obligation   passes    to    the 


.  355  OFFER    OF     PERFORMANCE.  §§  1503-1505 

creditor,  if  the  debtor  at  the  time  signifies  his  intention  to 
that  effect.     En.  March  21,  1S72. 
Cal.Rep.Cit.   98,  399;   106,  446. 

§  1503.  Custody  of  thing  offered.  The  person  offering  a 
thing,  other  than  money,  by  way  of  performance,  must,  if 
he  means  to  treat  it  as  belonging  to  the  creditor,  retain  it  ■ 
as  a  depositary  for  hire,  until  the  creditor  accepts  it,  or 
until  he  has  given  reasonable  notice  to  the  creditor  that  he 
will  retain  it  no  longer,  and,  if  with  reasonable  diligence 
he  can  find  a  suitable  depositary  therefor,  until  he  has 
deposited  it  with  such  person.    En.  March  21,  1872. 

Depositary  for  hire:    See    post,  sec.  1852. 

§  1504.  Effect  of  offer  on  accessories  of  obligation.  An 
offer  of  payment  or  other  performance,  duly  made,  though 
the  title  to  the  thing  offered  be  not  transferred  to  the 
creditor,  stops  the  running  of  interest  on  the  obligation  and 
has  the  same  effect  upon  all  its  incidents  as  a  performance 
thereof.     En.  March  21,  1872. 

Cal.Rep.Cit.   50,  651;    74,  256;   98,  399;   113,  662;   123,  543. 

Tender  transfers  title:    See  sec.  1502,  supra.  • 
Tender  bars  costs:    Code  Civ.  Proc,  sec.  1030. 
Effect  of  offer  in  writing  is  the  same  as  tender:    Code 
Civ.  Proc.,,  sec.  2074. 

§  1505.  Creditor's  retention  of  thing  which  he  refuses  to 
accept.  If  anything  is  given  to  a  creditor  by  way  of  per- 
formance, which  he  refuses  to  accept  as  such,  he  is  not 
bound  to  return  it  without  demand;  but  if  he  retains  it,  he 
is  a  gratuitous  depositary  thereof.     En.  March  21,  1872. 

Costs  when  tender  is  made  before  suit  brought:    Code 
Civ.   Proc,  sec.   1030. 
Gratuitous  depositary:    See  post,  sees.  1844  et  seq. 


1511-1514  PREVENTION   OF    PERFORiMANCE,   ETC.  356 


CHAPTER    III. 

PREVENTION  OF  PERFORMANCE  OR  OFFER. 

§  1511.  What  excuses    performance,    etc. 

§  1512.  Effect  of   prevention  of  performance. 

I  1513.  Same.       (Repealed.) 

§  1514.  Same. 

§  1515.  Etiect  of  refusal  to  accept  performance   before  offer. 

§  1511.  What  excuses  performance,  etc.  The  want  of 
performance  of  an  obligation,  or  of  an  offer  of  performance, 
in  whole  or  in  part,  or  any  delay  therein,  is  excused  by  the 
following  causes,  to  the  extent  to  which  they  operate: 

1.  When  such  perfor^iance  or  offer  is  prevented  or  de- 
layed by  the  act  of  the  creditor,  or  by  the  operation  of  law, 
even  though  there  may  have  been  a  stipulation  that  this 
shall  not  be  an  excuse; 

2.  When  it  is  prevented  or  delayed  by  an  irresistible, 
superhuman  cause,  or  by  the  act  of  public  enemies  of  this 
state  or  of  the  United  States,  unless  the  pai'ties  have 
expressly  agreed  to  the  contrary;  or, 

3.  When,  the  debtor  is  induced  not  to  make  it,  by  any 
act  of  the  creditor  intended  or  naturally  tending  to  have 
that  effect  done  at  or  before  the  time  at  which  such  per- 
formance or  offer  may  be  made,  and  not  rescinded  before 
that  time.     En.  March  21,  1872.  • 

Cal.Rep.Cit.      95,357;      96,352;      98,399.       Subd.   2— 129,  227. 
Subd.   3—119.  102. 

§  1512.  Effect  of  prevention  of  performance.  If  the  per- 
formance of  an  obligation  be  prevented  by  the  creditor,  the 
debtor  is  entitled  to  all  the  benefits  which  he  would  have 
obtained  if  it  had  been  performed  by  both  parties.  En. 
March  21,  1872.     Am'd.  1873-4,  240. 

Cal.Rep.Cit.   86,  614;   92,  182;   105,  520. 

§1513.  Same.  (Repealed.)  En.  March  21,  1872.  Rep. 
1873-4,  240. 

§  1514.  Same.  If  performance  of  an  obligation  is  pre- 
vented by  any  cause  excusing  performance,  other  than  the 
act  of  the  creditor,  the  debtor  is  entitled  to  a  ratable  pro- 
portion of  the  consideration  to  which  he  would  have  been 
entitled   upon  full   performance,   according  to  the   benefit 


357'  ACCORD    AND     SATISFACTION.  5§  1515-1523 

which  the  creditor  receives  from  the  actual  performance. 
En.  March  21,  1872. 

§  1515.  Effect  of  refusal  to  accept  performance  before 
offer.  A  refusal  by  a  creditor  to  accept  performance,  made 
before  an  offer  thereof,  is  equivalent  to  an  offer  and  refusal, 
unless,  before  performance  is  actually  due,  he  gives  notice 
to  the  debtor  ot  his  willingness  to  accept  it.  En.  March  21, 
1872. 

Cal.Rep.Cit.   98,   399. 

Refusal  to  perform  entitles  the  other  party  to  enforce 
the  obligation  without  performance  on  his  part:  See,  ante, 
sec.  1440. 


CHAPTER    IV. 

ACCORD    AND    SATISFACTION. 

§  1521.  Accord,  what. 

§  1522.  Effect   of   accord. 

§  1523.  Satisfaction,   what. 

§  1524.  Part  performance. 

§  1521.  Accord,  what.  An  accord  is  an  agreement  to 
accept  in  extinction  of  an  obligation,  something  different 
from  or  less  than  that  to  which  the  person  agreeing  to 
accept  is  entitled.    En.  March  21,  1872.    Am'd.  1873-4,  240. 

Cal.Rep.Cit.   82,  37;   119,  466. 

Release  of  obligations:    See   post,  sees.  1541  et  seq. 
Substituting  a  new  obligation  for  the  existing  one  is  a 
novation:    See  post  sees.  1530  et  seq. 

Order  on  third  person,  effect  of;    See,  post,  sec.  1533. 

§  1522.  Effect  of  accord.  Though  the  parties  to  an 
accord  are  bound  to  execute  it,  yet  it  does  not  extinguish 
the  obligation  until  it  is  fully  executed.    En.  March  21,  1872. 

Cal.Rep.Cit.  92,  37. 

§  1523.  Satisfaction,  what.  Acceptance,  by  the  creditor, 
of  the  consideration  of  an  accord  extinguishes  the  obliga- 
tion, and  is  called  satisfaction.    En.  March  21,  1872. 

Cal.Rep.Cit.  56,  495  ;   92,  37. 

See  next  section. 


B§  1524-1533  NOVATION  S53 

§  1524.  Part  performance.  Part  performance  of  an  obli- 
gation, either  before  or  after  a  breach  thereof,  when 
expressly  accepted  by  the  creditor  in  writing,  in  satisfac- 
tion, or  rendered  in  pursuance  of  an  agreement  in  writing, 
for  that  purpose,  though  without  any  new  consideration, 
extinguishes  the  obligation.  En.  March  21,  1872.  Am'd. 
1873-4,  241. 

Cal.Rep.Cit.   56,  495 ;   88,  552 ;   92,  37. 


CHAPTER    V. 

NOVATION. 
§  1530.     Novation,   what. 
§   1531.      Modes  of  novation. 
§   1532.      Novation   a   contract. 
§  1533.      Rescission  of  novation. 

§  1530.  Novation,  what.  Novation  is  the  substitution  of 
a  new  obligation  for  an  existing  one.     En.  March  21,  1872, 

Cal.Rep.Cit.   49,  50  ;   60,  395. 

See  sec.  1532,  infra. 

Right  to  sue  on  contract  made  for  one's  benefit:  See, 
post,  sec.  1559. 

§  1531.     Modes  of  novation.     Novation  is  made: 

1.  By  the  substitution  of  a  new  obligation  between  the 
same  parties,  with  intent  to  extinguish  the  old  obligation; 

2.  By  the  substitution  of  a  new  debtor  in  place  of  the 
old  one,  with  intent  to  release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the 

old  one,  with  intent  to  transfer  the  rights  of  the  latter  to 

the  former.     En.  March  21,  1872. 

Cal.Rep.Cit.      60,395;      63,502;      72,551;      86,576;    110,263; 
131,  497. 

§  1532.  Novation  a  contract.  Novation  is  made  by  con- 
tract, and  is  subject  to  all  the  rules  concerning  contracts 
in  general.    En.  March  21,  1872. 

Cal.Rep.Cit.   54,  338  ;   60,  395  ;    109,  596. 

§  1533.  Rescission  of  novation.  "When  the  obligation  of 
a  third  person,  or  an  order  upon  such  person,  is  accepted 
in  satisfaction,  the  creditor  may  rescind  such  ((such)  ac- 
ceptance if  the  debtor  prevents  such  person  from  comply- 


359  RELEASE.  §§  1541-1543 

ing  with  the  order,  oi  from  fulfilling  the  obligation;  or  if, 
at  the  time  the  obligation  or  order  is  received,  such  person 
is  insolvent,  and  this  fact  is  unknown  to  the  creditor,  or  if, 
before  the  creditor  can  with  reasonable  diligence  present 
the  order  to  the  person  upon  whom  it  is  given,  he  becomes 
insolvent.    En.  March  21,  1872,     Am'd.  1873-4,  241, 


CHAPTER    VI. 

RELEASE. 

§  1541.     Obligation  extinguished  by  release. 

§  1542.      Certain    claims   not   alfeeted   by    general   release. 

$  1543.     Release  of  one  of  several  joint  debtors. 

§  1541.  Obligation  extinguished  by  release.  An  obliga- 
tion is  extinguished  by  a  release  therefrom  given  to  the 
debtor  by  the  creditor,  upon  a  new  consideration,  or  in 
writing,  with  or  without  new  consideration.  En.  March  21, 
1872. 

Cal.Rep.Cit.  57,  51;   78,  555;   121,  253. 

Writing  imports  a  considei'ation:    Post,  sec.  1614. 

§  1542.  Certain  claims  not  affected  by  general  release. 
A  general  release  does  not  extend  to  claims  which  the 
creditor  does  not  know  or  suspect  to  exist  in  his  favor  at 
the  time  of  executing  the  release,  which  if  known  by  him 
must  have  materially  affected  his  settlement  with  the 
debtor.     En.  March  21,  1872.     Am'd.  1873-4,  241. 

Cal.Rep.Cit.   86,  253;    86,  254;   119,  469;   134,  548. 

§  1543.     Release    of    one    of    several    joint    debtors.      A 

release  of  one  of  two  or  more  joint  debtors  does  not 
extinguish  the  obligations  of  any  of  the  others,  unless  they 
are  mere  guarantors;  nor  does  it  affect  their  right  to  con- 
tribution from  him.     En.  March  21,  1872. 

Cal.Rep.Cit.      63,  158;      68,     89;      68,     90;      70,  114;      76,       7; 
86,  253;   122,  654;   125,  512;   130,  254;    133,  113. 

Guarantor's  liability  discharged:    See    post,  sec.  2819. 
Rights  of  sureties:    See  post,  sec,  2844. 


PART  II. 


CONTRACTS. 

Title    I.  Nature  of  a  Contract,  §§  1549-1615. 

II.  Manner  of  Creating  Contracts,  §§  1619-1629. 

III.  Interpretation  of  Contracts,  §§  1635-1661. 

IV.  Unlawful  Contracts,  §§  1667-1676. 

V.    Extinction  of  Contracts,  §§  1682-1701. 

TITLE  I. 
NATURE  OF  A  CONTRACT. 

Chapter  I.  Definition,  §§  1549-1550. 

II.  Parties,  §§  1556-1559. 

III.  Consent,  §§  1565-1589. 

rV.  Object,  §§  1595-1599. 

v.  Considerations,  §§  1605-1615. 

CHAPTER    I. 

DEFINITION. 

§  1549.     Contract,  what. 

§  1550.     Essential  elements  of  contract. 

§  1549.     Contract,  what.     A  contract  is  an  agreement  to 
do  or  not  to  do  a  certain  thing.    En.  March  21,  1872. 
Cal.Rep.Cit.  78,   536. 

§  1550.     Essential   elements  of  contract.     It  is  essential 
to  the  existence  of  a  contract  that  there  should  be: 

1.  Parties  capable  of  contracting; 

2.  Their  consent; 

3.  A  lawful  object;  and, 

4.  A  sufficient  cause  or   consideration.     En.   March   21, 
1872. 

Cal.Rep.Cit.  64,  110;   85,  30;   115,  515.    Subd.  2—135,  563. 
Consent:    See  post,  sees.  1565  et  seq. 
Unlawful  contracts:    See    post,  sec.  1667. 
Consideration:    See  post,  sees.  1605  et  seq. 


361  PARTIES.  §§  1556-1559 

CHAPTER    II. 

PARTIES. 

§  1556.  Who  may  contract. 

§   1557.  Minors,  etc. 

§  1558.  Identification  of  parties  necessary. 

§  1559.  When  contract  for  benefit  of  third  person  may  be  enforced. 

§  1556.  Who  may  contract.  All  persons  are  capable  of 
contracting,  except  minors,  persons  of  unsound  mind,  and 
persons  deprived  of  civil  rights.    En.  March  21,  1872. 

Cal.Rep.Cit.   54,  178. 

Contracts  of  infants:    See  ante,  sees.  33  et  seq. 

Contracts  of  persons  of  unsound  mind:  See  ante,  sees.  38 
et  seq. 

Contracts  of  married  women:  See  ante,  sees.  158,  159, 
167. 

§  1557.  Minors,  etc.  Minors  and  persons  of  unsound 
mind  have  only  such  capacity  as  is  defined  by  part  I  of 
division  I  of  this  code.    En.  March  21,  1872. 

See  ante,  sees.  33  et  seq. 

§  1558.  Identification  of  parties  necessary.  It  is  essen- 
tial to  the  validity  of  a  contract,  not  only  that  the  parties 
should  exist,  but  that  it  should  be  possible  to  identify  them. 
En.  March  21,  1872. 

§  1559.     Wiien  contract  for  benefit  of  third   person   may 

be  enforced.    A  contract,  made  expressly  for  the  benefit 

of  a  third  person  may  be  enforced  by  him  at  any  time 

before  the  parties  thereto  rescind  it.    En.  March  21,  1872. 

Cal.Rep.Cit.     68,389;     73,525;     94,     84;      95,168;   106,553; 
109.  136:  110,  346;  112,  258;   120,  574. 

Civ.  Code— 16 


:S 1565,  1566 


CONSENT. 


862 


CHAPTER    III. 

CONSENT. 

§  1565.  Essentials  of  consent. 

5   1566.  Consent,   when  voidable. 

§  1567.  Apparent   consent,   when  not  free. 

§  1568.  When   deemed  to  have  been  obtained  by  fraud,  etc 

§  1569.  Duress,  what. 

§  1570.  Menace,   what. 

§   1571.  Fraud,  actual  or  constructive. 

§  1572.  Actual  fraud,  what. 

§   1573.  Constructive   fraud. 

§   1574.  Actual  fraud  a  question  of  fact. 

§   1575.  Undue  influence,  what. 

§   1576.  Mistake,  what. 

§   1577.  Mistake  of  fact. 

§  1578.  Mistake  of  law. 

§   1579.  Mistake  of  foreign  laws. 

§   1580.  Mutuality   of   consent. 

§  1581.  Communication  of  consent. 

§  1582.  Mode  of  communicating  acceptance  of  proposal. 

§  1583.  "When  communication  deemed  complete. 

§  1584.  Acceptance  by  performance  of  conditions. 

§  1585.  Acceptance  must  be  absolute. 

§  1586.  Revocation   of   proposal. 

§  1587.  Revocation,    how   made. 

§  1588.  Ratification  of  contract,  void  for  want  of  consent. 

§  1589.  Assumption    of   obligation   by   acceptance   of    benefits. 

§  1565.  Essentials  of  consent.  The  consent  of  the 
parties  to  a  contract  must  be: 

1.  Free; 

2.  Mutual;  and, 

3.  Communicated  by  each  to  the  other.    En.  March  21, 

1872. 

Cal.Rep.Cit.     82,398;     85,     30;   123,431.      Subd.  3— 125,  481 ; 
135,  563. 

Consent,   when  not  free,   and   effect:     Sees.   1566,   1567, 

infra. 

Consent,  when  not  mutual:    See  sec.  1580. 

Consent,  how  communicated:    See  infra,  sees.  1581  et  seq". 

§  1566.  Consent,  when  voidable.  A  consent  which  is  not 
free  is  nevertheless  not  absolutely  void,  but  may  be  re- 
scinded by  the  parties  in  the  manner  prescribed  by  the 
chapter  on  rescission.    En.  March  21,  1872. 

Cal.Rep.Cit.      71,440;      82,399;      85,     30;      95,639;   110,379; 
126,  504  ;   129,     82  ;   129,     84  ;   129,     85. 

Rescission  of  contracts:  See  post,  sees.  1688  et  seq.; 
sees.  3406  et  seq. 


863  CONSENT.  §§  1567-1570 

§  1567.  Apparent  consent,  when  not  free.  An  apparent 
consent  is  not  real  or  iree  when  obtained  tlirough; 

1.  Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  influence;  or, 

5.  Mistake.     En.  Marcti  21,  1872. 

Cal.Rep.Cit.     71,440;     82,399;     85.     30;   129,     85.    Subd.  5— 
134,  548. 

Duress  defined:    Sec.  1569. 
Menace  defined:    Sec.  1570. 
Fraud  defined:    Sec.  1571. 
Undue  influence  defined:    Sec.  1575. 
Mistake  defined:    Sees.  1576,  1577. 

§  1568.  When  deemed  to  have  been  obtained  by  fraud, 
etc.  Consent  is  deemed  to  have  been  obtained  through  one 
of  the  causes  mentioned  in  the  last  section  only  when  it 
would  not  have  been  given  had  such  cause  not  existed. 
En.  March  21,  1872. 

Gal.Rep.Cit.   82,  399  ;    85,  30  ;   130,  198. 

§  1569.     Duress,   what.     Duress   consists   in: 

1.  Unlawful  confinement  of  the  person  of  the  party,  or 
of  the  husband  or  wife  of  such  party,  or  of  an  ancestor, 
descendant,  or  adopted  child  of  such  party,  husband,  or 
wife; 

2.  Unlawful  detention  of  the  property  of  any  such  person; 
or, 

3.  Confinement  of  such  person,  lawful  in  form,  but  fraudu- 
lently obtained,  or  fraudulently  made  unjustly  harassing 
or  oppressive.    En.  March  21,  1872. 

Cal.Rep.Cit.   93,  455;   98,  575;   107,  308;   130,  198. 

§  1570.     Menace,  what.     Menace  consists  in  a  threat: 

1.  Of  such  duress  as  is  specified  in  subdivisions  1  and  3 
of  the  last  section; 

2.  Of  unlawful  and  violent  injury  to  the  person  or  prop- 
erty of  any  such  person  as  is  specified  in  the  last  section; 
or, 

3.  Of  injury  to  the  character  of  any  such  person.  En. 
March  21,  1872. 

Cal.Rep.Cit.   93,  455  ;   130,  198. 


S:  1571-1574  CONSENT.  -864 

§  1571.     Fraud,  actual   or  constructive.     Fraud  is  either 
actual  or  constructive.   En.   March   21,   1S72. 
Cal.Rep.Cit.  78,  225;   82,  383;   85,  30. 

§  1572.  Actual  fraud,  what.  Actual  fraud,  within  the 
meaning  of  this  chapter,  consists  in  any  of  the  following 
acts,  committed  by  a  party  to  the  contract,  or  with  his  con- 
nivance, with  intent  to  deceive  another  party  thereto,  or 
to  induce  him  to  enter  into  the  contract: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true, 
by  one  who  does  not  believe  it  to  be  true; 

2.  The  positive  assertion  in  a  manner  not  warranted  by 
the  information  of  the  person  making  it,  of  that  which  is 
not  true,  though  he  believes  it  to  be  true; 

3.  The  suppression  of  that  which  is  true,  by  one  having 
knowledge  or  belief  of  the  fact; 

4.  A  promise  made  without  any  intention  of  performing 
it;  or, 

5.  Any  other  act  fitted  to  deceive.     En.  March  21,  1872. 

Cal.Rep.Cit.  56,365;  65,402;      78,225;  79,316;      82,383; 

9G,  440;  127,  535;  131,  477;   133,  443.  Subd.   2  —  84,  649; 

103,     42;  134,  663.  Subd.   4  —  75,  527;  77,     26;      78,  131; 

88,  477;  88,  565;  93,  359;   122,  581. 

Fraudulent  conveyance  a  misdemeanor:  Pen.  Code,  sec. 
531. 

Fraudulent  instruments  and  transfers:  See  post,  sees. 
3439  et  seq. 

Rescission  of  contracts  for  fraud:     See  post,  sec.  1689. 

Deceit:     See  post,  sees.  1709,  1710. 

§  1573.  Constructive  fraud.  Constructive  fraud  con- 
sists: 

1.  In  any  breach  of  duty  which,  without  an  actually 
fraudulent  intent,  gains  an  advantage  to  the  person  in 
fault,  or  any  one  claiming  under  him,  by  misleading  an- 
other to  his  prejudice,  or  to  the  prejudice  of  any  one 
claiming  under  him;  or, 

2.  In  any  such  act  or  omission  as  the  law  specially  de- 
clares to  be  fraudulent,  without  respect  to  actual  fraud. 
En.  March  21,  1872. 

Cal.Rep.Cit.   56,  365;    65,  402;   91,  18.    Subd.   2—134,  663. 

§  1574.     Actual   fraud   a  question   of  fact.     Actual  fraud 
Is  always  a  question  of  fact.     En.  March  21,  1872. 
Cal.Rep.Cit.  119,  434. 


365  CONSENT.  §§  1575-1579 

§  1575.  Undue  influence,  what.  Undue  influence  con- 
sists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed 
by  another,  or  who  holds  a  real  or  apparent  authority  over 
him,  of  such  confidence  or  authority  for  the  purpose  of 
obtaining  an  unfair  advantage  over  him; 

2.  In  taking  an  unfair  advantage  of  another's  weakness 
of  mind;  or, 

3.  In  taking  a  grossly  oppressive  and  unfair  advantage 
of  another's  necessities  or  distress.     En.  March  21,  1872. 

Cal.Rep.Cit.      56,     93;      79,  316;      94,  646;      97.  262.     Subd.   1— 
90,  336;   103,  102;   134,  174;   135,  318. 

Undue  influence  vitiating  will:     See  ante,  sec.  1272. 
Rescission  of  contracts:      See  post,  sees.  1689,  3406. 

§  1576.     Mistake,  what.     Mistake  may  be  either  of  fact  or 
law.     En.  March  21,  1872. 
Cal.Rep.Cit.   96,   659. 

§  1577.  Mistake  of  fact.  Mistake  of  fact  is  a  mistake, 
not  caused  by  the  neglect  of  a  legal  duty  on  the  part  of 
the  person  making  the  mistake,  and  consisting  in: 

1.  An  unconscious  ignorance  or  forgetfulness  of  a  fact 
past  or  present,  material  to  the  contract;  or, 

2.  Belief  in  the  present  existence  of  a  thing  material 
to  the  contract,  which  does  not  exist,  or  in  the  past  ex- 
istence of  such  a  thing,  which  has  not  existed.  En.  March 
21,  1872. 

Cal.Rep.Cit.      68,  616;   119,  435;   119,  436;   122,  100.     Subd.   1— 
119,  468;   131,  639;   134,  384. 

§  1578.  Mistake  of  law.  Mistake  of  law  constitutes  a 
mistake,  within  the  meaning  of  this  article,  only  when  it 
arises  from: 

1.  A  misapprehension  of  the  law  by  all  parties,  all  sup- 
posing that  they  knew  and  understood  it,  and  all  making 
substantially  the  same  mistake  as  to  the  law;  or, 

2.  A  misapprehension  of  the  law  by  one  party,  of  which 

the  others  are  aware  at  the  time  of  contracting,  but  which 

they  do  not  rectify.     En.  March  21,  1872. 

Cal.Rep.Cit.      95,     74;   119,  469.       Subd.   1—119,  468;   127,  537; 
129,  478;    130,  479;    134,  548. 

§  1579.  Mistake  of  foreign  laws.  Mistake  of  foreign 
laws  is  a  mistake  of  fact.    En.  March  21,  1872. 


S§  1580-15S5  CONSENT.  866 

Foreign  laws,  how  proved:  See  Code  Civ.  Proc,  sees. 
1900,  1901. 

§  1580.  Mutuality  of  consent.  Consent  is  not  mutual, 
unless  the  parties  all  agree  upon  the  same  thing  in  the 
same  sense.  But  in  certain  cases  defined  by  the  chapter 
on  Interpretation,  they  are  to  be  deemed  so  to  agree  with- 
out regard  to  the  fact.    En.  March  21,  1872. 

Cal.Rep.Cit.   60,  392;   137,  692. 

Interpretation  of  contracts:     See  post,  sees.  1635  et  seq. 

§  1581.  Communication  of  consent.  Consent  can  be 
communicated  with  effect  only  by  some  act  or  omission  of 
the  party  contracting,  by  w^hich  he  intends  to  communicate 
it,  or  which  necessarily  tends  to  such  communication.  En. 
March  21,  1872. 

§  1582.  Mode  of  communicating  acceptance  of  proposal. 
If  a  proposal  prescribes  any  conditions  concerning  the  com- 
munication of  its  acceptance,  the  proposer  is  not  bound 
unless  they  are  conformed  to;  but  in. other  cases  any  rea- 
sonable and  usual  mode  may  be  adopted.  En.  March  21, 
1872. 

Cal.Rep.Cit.   115,515;    123,431. 

§  1583.  When  communication  deemed  complete.  Con- 
sent is  deemed  to  be  fully  communicated  between  the 
parties  as  soon  as  the  party  accepting  a  proposal  has  put 
his  acceptance  in  the  course  of  transmission  to  the  pro- 
poser, in  conformity  to  the  last  section.  En.  March  21, 
1872. 

Cal.Rep.Cit.   123,  431. 

§  1584.  Acceptance  by  performance  of  conditions.  Per- 
formance of  the  conditions  of  a  proposal,  or  the  acceptance 
of  the  consideration  offered  with  a  proposal,  is  an  accept- 
ance of  the  proposal.     En.  March  21,  1872. 

§  1585.  Acceptance  must  be  absolute.  An  acceptance 
must  be  absolute  and  unqualified,  or  must  include  in  itself 
an  acceptance  of  that  character  which  the  proposer  can 
separate  from  the  rest,  and  which  will  conclude  the  person 
accepting.  A  qualified  acceptance  is  a  new  proposal.  En. 
March  21,  1872. 

Cal.Rep.Cit.   82,   87. 


367  OBJECT    OF    A    CONTRACT.  |§  15S6-1595 

§  1586.  Revocation  of  proposal.  A  proposal  may  be  re- 
voked at  any  time  before  its  acceptance  is  communicated 
to  the  proposer,  but  not  afterwards.     En.  March  21,  1872. 

Cal.Rep.Cit.  82,  87. 

§  1587.     Revocation,  how  made.     A  proposal  is  revoked: 

1.  By  the  communication  of  notice  of  revocation  by  the 
proposer  to  the  other  party,  in  the  manner  prescribed  by 
sections  1581  and  1583,  before  his  acceptance  has  been 
communicated  to  the  former; 

2.  By  the  lapse  of  the  time  prescribed  in  such  proposal 
for  its  acceptance,  or  if  no  time  is  so  prescribed,  the  lapse 
of  a  reasonable  time  without  communication  of  the  accept-^ 
ance; 

3.  By  the  failure  of  the  acceptor  to  fulfill  a  condition 
precedent  to  acceptance;  or, 

4.  By  the  death  or  insanity  of  the  proposer.  En.  March 
21,  1872. 

§  1588.  Ratification  of  contract,  void  for  want  of  con- 
sent. A  contract  which  is  voidable  solely  for  want  of  due 
consent  may  be  ratified  by  a  subsequent  consent.  En. 
March  21,  1872. 

Cal.Rep.Cit.  130,   433. 

§  1589.  Assumption  of  obligation  ty  acceptance  of  bene- 
fits. A  voluntary  acceptance  of  the  benefit  of  a  tT-ausaetion 
is  equivalent  to  a  consent  to  all  the  obligations  arising  from 
it,  so  far  as  the  facts  are  known,  or  ought  to  be  known, 
to  the  person  accepting.    En.  March  21,  1872. 

Cal.Rep.Cit.      86,  577;   100,     72;   105,  296;   105,  297;   105,  298; 
113,  231;   113,  236;   113,  561;   120,  574;   130,  433;   137.     25. 

CHAPTER    IV. 

OBJECT    OF    A    CONTRACT. 

§  1595.  Object,  what. 

§  1596.  Requisites  of  object. 

§  1597.  Impossibility,  what. 

§  1598.  When  contract  wholly  void. 

§  1599.  When  contract  partially  void. 

§  1595.  Object,  what.  The  object  of  a  contract  is  the 
thing  which  it  is  agreed,  on  the  part  of  the  party  receiving 
the  consideration,  to  do  or  not  to  do.    En.  March  21,  1872. 

Cal.Rep.Cit.  126,  598. 


§§  1596-1605  CONSIDERATION.  868 

Unlawful  contracts:  See  next  section,  and  post,  sees. 
1667  et  seq. 

Unlawful  conditions:     See  ante,  sec.  1441. 

§  1596.  Requisites  of  object.  The  object  of  a  contract 
must  be  lawful  when  the  contract  is  made,  and  possible 
and  ascertainable  by  the  time  the  contract  is  to  be  per- 
formed.    En.  March  21,  1872. 

See  post,  sees.  1667  et  seq. 

§  1597.  Impossibility,  what.  Everything  is  deemed  pos- 
sible except  that  which  is  impossible  in  the  nature  of 
things.     En.  March  21,  1872. 

§  1598.  When  contract  wholly  void.  Where  a  contract 
has  but  a  single  object,  and  such  object  is  unlawiui, 
whether  in  whole  or  in  part,  or  wholly  impossible  of  per- 
formance, or  so  vaguely  expressed  as  to  be  wholly  unascer- 
tainable,  the  entire  contract  is  void.     En.  March  21,  IS  7.. 

Cal.Rep.Cit.  132,   65. 

§  1599.  When  contract  partially  void.  Where  a  contract 
has  several  distinct  objects,  of  which  one  at  least  is  ia.s- 
ful,  and  one  at  least  is  unlawful,  in  whole  or  in  part,  the 
contract  is  void  as  to  the  latter  and  valid  as  to  tue  rest. 
En;  March  21,  1872. 

Cal.Rep.Cit.  59,  682  ;   136,  660. 

CHAPTER    V. 

CONSIDERATION. 

§  1605.  Good  consideration,  what. 

§  1606.  How  far  legal  or  moral  obligation  Is  a  good  consideration. 

§  1607.  Consideration    lawful. 

§   1608.  Effect  of   its   illegality. 

§   1609.  Consideration   executed   or   executory. 

§   1610.  Executory   consideration. 

§  1611.  How  ascertained. 

§  1612.  Effect  of   impossibility  of  ascertaining  consideration. 

§   1613.  Same. 

§  1614.  Written   instrument  presumptive  evidence  of  consideration. 

§  1615.  Burden  of  proof  to  invalidate  sufficient  consideration. 

§  1605.  Good  consideration,  what.  Any  benefit  con- 
ferred, or  agreed  to  be  conferred,  upon  the  promisor,  by 
any  other  person,  to  which  the  promisor  is  not  lawfully 
entitled,  or  any  prejudice  suffered,  or  agreed   to  be   suf- 


369  CONSIDERATION.  §§  1606-1611 

t'ered,  by  such  person,  other  than  such  as  he  is  at  the  time 
of  consent  lawfully  bound  to  suffer,  as  an  inducement  to 
the  promisor,  is  a  good  consideration  for  a  promise.  En. 
March  21,  1872. 

Cal.Rep.Cit.   S9,  654;   104,  242;   126,  598. 

§  1606.  How  far  legal  or  moral  obligation  is  a  good  con- 
sideration. An  existing  legal  obligation  resting  upon  the 
promisor,  or  a  moral  obligation  originating  in  some  beneiit 
conferred  upon  the  promisor,  or  prejudice  suffered  by  the 
promisee,  is  also  ^  good  consideration  for  a  promise,  to 
an  extent  corresponding  with  the  extent  of  the  obligation, 
but  no  further  or  otherwise.    En.  March  21,  1872. 

Cal.Rep.Cit.  112,   205. 

§  1607.  Consideration  lawful.  The  consideration  of  a 
contract  must  be  lawful  within  the  meaning  of  section 
1667.     En.  March  21,  1872. 

Cal.Rep.Cit.   68,  30;   82,  643;   83,  177;   125,  122. 

Unlawful  contracts:     See  post,  sees.  1667  et  seq. 

§  1608.  Effect  of  its  illegality.  If  any  part  of  a  single 
consideration  for  one  or  more  objects,  or  of  several  con- 
siderations for  a  single  object,  is  unlawful,  the  entire  con- 
tract is  void.     En.  March  21,  1872. 

Cal.Rep.Cit.      67,     30;      68,     30;      82,643;      83,177;      96,112; 
125,  122;   131,  384;   136,     67. 

§  1609.  Consideration  executed  or  executory.  A  consid- 
eration may  be  executed  or  executory  in  whole  or  in  part. 
In  so  far  as  it  is  executory  it  is  subject  to  the  provisions 
of  chapter  IV  of  this  title.     En.  March  21,  1872. 

Cal.Rep.Cit.   90,   375. 

§  1610.  Executory  consideration.  When  a  consideration 
is  executory,  it  is  not  indispensable  that  the  contract  should 
specify  its  amount  or  the  means  of  ascertaining  it.  It 
may  be  left  to  the  decision  of  a  third  person,  or  regulated 
by  any  specified  standard.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,  296;    90.  375. 

§  1611.  How  ascertained.  When  a  contract  does  not 
determine  the  amount  of  the  consideration,  nor  the  method 
by  which  it  is  to  be  ascertained,  or  when  it  leaves  the 
amount  thereof  to  the  discretion  of  an  interested  party,  the 


§§  1612-1615  CONSIDERATION.  370 

consideration  must  be  so  much  money  as  the  object  of  the 
contract  is  reasonably  worth.    En.  March  21,  1872. 

Cal.Rep.Cit.  90,  375. 

See  following  sections. 

§  1612.  Effect  of  impossibility  of  ascertaining  considera- 
tion. Where  a  contract  provides  an  exclusive  method  by 
which  its  consideration  is  to  be  ascertained,  which  method 
is  on  its  face  impossible  of  execution,  the  entire  contract 
is  void.     En.  March  21,  1872. 

§  1613.  Same.  Where  a  contract  provides  an  exclusive 
method  by  which  its  consideration  is  to  be  ascertained, 
which  method  appears  possible  on  its  face,  but  in  fact  is, 
or  becomes  impossible  of  execution,  such  provision  only 
is  void.    En.  March  21,  1872. 

§  1614.  Written  instrument  presumptive  evidence  of 
consideration.  A  written  instrument  is  presumptive  evi- 
dence of  a  consideration.     En.  March  21,  1872. 

Cal.Rep.Cit.  62,  638 ; 

79,  607;  85,  327; 

100,  433;  103,  101; 

129,  306;  131,  383. 

Distinction    between    sealed    and    unsealed    instruments 

abolished:     See  post,  sec.  1629. 

§  1615.  Burden  of  proof  to  invalidate  sufficient  consid- 
eration. The  burden  of  showing  a  want  of  consideration 
sufficient  to  support  an  instrument  lies  with  the  party 
seeking  to  invalidate  or  avoid  it.     En.  March  21,  1872. 


67,539;   68,617;   69,614;   75,518 

86,  642;   88,  82;   96,  110;  100,  432 

106,  655;  111,  284;  120,  682;  124,  579 


Cal.Rep.Cit.   68,  617 

85,  327  ;   88,  82 

124,  579 ;  129,  306 


69,  614;   75,  518;   79,  607;   83,  177; 
96,  110;  103,  101;  111,  284;  120,  682; 
131,  383. 


371  MANNER  'OF  CREATING  CONTRACTS.  .        §§  1619-1023 

TITLE    II. 

MANNER    OF    CREATING    CONTRACTS. 

§  1619.  Contracts,  express  or  implied. 

§  1620.  Express   contract,   what. 

§   1621.  Implied   contract,   what. 

§  1622.  What  contracts  may   be  oral. 

§  1623.  Contract   not    in   writing   through   fraud,    may   be    enforced 

against  fraudulent  party. 

§  1624.  What   contracts   must   be   written. 

§   1625.  Effect  of  writing. 

§   1626.  Contract  in  writing,  takes  effect  when. 

§  1627.  Provisions  of  chapter  on  transfers  of  real  property. 

I   1628.  Corporate  seal,  how  affixed. 

§  1629.  Provisions  abolishing  seals  made  applicable. 

§  1619.  Contracts,  express  or  implied.  A  contract  is 
either  express  or  implied.     En.  M'arch  21,  1872. 

§  1620.  Express  contract,  what.  An  express  contract  is 
one,  the  terms  of  which  are  stated  in  words.  En.  March 
21,  1872. 

Cal.Rep.Cit.  135,   563. 

§  1621.  Implied  fcontract,  what.  An  implied  contract  is 
one,  the  existence  and  terms  of  which  are  manifested  by 
conduct.     En.  March  21,  1872. 

Cal.Rep.Cit.   79,   326. 

Obligations  imposed  by  law:     See  post,  sees.  1708  et  seq. 

§  1622.  What  contracts  may  be  oral.  All  contracts  may 
be  oral,  except  such  as  are  specially  required  uy  statute 
to  be  in  writing.     En.  March  21,  1872. 

Cal.Rep.Cit.   90,  359;   93,  495;   115,  515;   137,  243. 

Contracts,  when  to  be  in  writing:  See  infra,  sees.  1623, 
1624;  Code  Civ.  Proc,  sees.  1971-1974. 

§  1623.  Contract  net  in  writing  through  fraud,  may  be 
enforced  against  fraudulent  party.  Where  a  contract, 
which  is  required  by  law  to  be  in  writing,  is  prevented 
from  being  put  into  writing  by  the  fraud  of  a  party  thereto, 
any  other  party  who  is  by  such  fraud  led  to  believe  that 
it  is  in  writing,  and  acts  upon  such  belief  to  his  prejudice, 
may  enforce  it  against  the  fraudulent  party.  UJn.  March 
21,  1872. 

Cal.Rep.Cit.   88,   436. 

See  Code  Civ.  Proc,  sees.  1971-1974. 


{  1624  MANNER    OP    CREATING    CONTRACTS.  372 

§  1624.  What  contracts  must  be  written.  The  following 
contracts  are  invalid,  unless  the  same,  or  some  note  or 
memorandum  thereof,  be  in  writing  and  subscribed  by 
the  party  to  be  charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the  making  thereof. 

2.  A  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  except  in  the  cases  provided  for 
in  section  twenty-seven  hundred  and  ninety-four  of  this 
code. 

3.  An  agreement  made  upon  considei-ation  of  marriage 
other  than  a  mutual  promise  to  marry. 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things 
in  action,  at  a  price  not  less  than  two  hundred  dollars, 
unless  the  buyer  accept  or'  receive  part  of  such  goods  and 
chattels,  or  the  evidences,  or  some  of  them,  of  such  things 
in  action,  or  pay  at  the  time  some  part  of  the  purchase- 
money;  but  when  a  sale  is  made  at  auction,  an  entry  by 
the  auctioneer  in  his  sale  book,  at  the  time  of  the  sale, 
of  the  kinds  of  property  sold,  the  terms  of  the  sale,  the 
price,  and  the  names  of  the  purchaser  and  person  on  whose 
account  the  sale  is  made,  is  a  sufficient  memorandum. 

5.  An  agreement  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  for  an  interest 
therein;  and  such  agreement,  if  made  by  an  agent  of  the 
party  sought  to  be  charged,  is  invalid,  unless  the  aathority 
of  the  agent  be  in  writing,  subscribed  by  the  party  sought 
to  be  charged. 

6.  An  agreement  authorizing  or  employing  an  agent  or 

broker  to  purchase  or  sell  real  estate  for  compensation  oi 

a  commission.     En.   March    21,    1872.     Am'd.   1873-4,    241; 

1877-8,  86. 

Cal.Rep.Cit.  77,  282;  89,  570;  100,  29;  111,  285;  112,  635 

113,  434;  133,  478.  Subd.  1  —  67,  93;   77,  388;  117,  591 

128,  158;  130,  356;  133,  478.   Subd.  2  —  67,  659;   SI,  288 
117,  592;  119,  241;  130,  413.   Subd.  3  —  75,  300;  103,  160 

Subd.  4  —  67,  93;  75,  526;   91,  671.   Subd.  5  —  71,  47 

72,144;   75,169;  81,207;   82,546;   85,598;   89,569 

93,  495;   96,  109;  106,  600;  128,  158;  134,  229.  Subd.  6— 

62,302;   75,511;  86,641;   87,116;   90,358;  100,  28; 

129,  390;    129,  489. 

Statute  of  frauds:     See  Code  Civ.  Proc,  sees.  1971-1974, 
Memorandum  by  auctioneer:     See  post,  sec.  1798. 
Guaranty:     See  post,  sec.  2793. 


873  iMAXXER     OF     CREATING     CONTRACTS.         §§  1625-1C29 

Sale  of  realty:     See  post,  sec.  1741. 
Fraudulent  transfers:      See  post,  sec.  3440. 
Sales  of  personalty:     See  post,  sees.  1739  et  seq. 
Guaranty:     See  post,  sees.  2793  et  seq. 
Part  performance  taking  case  out  of  statute:     See  post, 
sec.  1741. 

§  1625.     Effect  of  writing.     The  execution  of  a  contract 

in  writing,  .whether  the  law  requires  it  to  be  written  or 

not,    supersedes   all   the   oral   negotiations   or   stipulations 

concerning  its  matter  which  preceded  or  accompauied  the 

execution  of  the  instrument.     En.  March  21,  1S72. 

Cal.Rep.Cit.      81,       7;      82,478;      82,546;      86,340;      89,621; 
95,  570;      96,  109;      96,  110;   112,     51;    113,  440;    117,  211. 

Writing  supersedes  oral  stipulations:     See  post,  sec.  1639. 

§  1626.  Contract  in  writing,  takes  effect  when.  A  con- 
tract in  writing  takes  effect  upon  its  delivery  to  the  party 
in  whose  favor  it  is  made,  or  to  his  agent.  En.  iviarch  21, 
1872. 

Cal.Rep.Cit.   115,  202;   129,  253. 

Delivery  of  transfers  in  writing:  See,  generally,  ante, 
sec.  1054. 

§  1627.  Provisions  of  chapter  on  transfers  of  real  prop- 
erty. The  provisions  of  the  chapter  on  Transfers  in  Gen- 
eral, concerning  the  delivery  of  grants,  absolute  and  con- 
ditional, apply  to  all  written  contracts.  En.  March  21, 
1872. 

Cal.Rep.Cit.   128,   546. 

See  ante,  sees.  1052  et  seq. 

§1628.  Corporate  seal,  how  affixed..  A  corporate  or  of- 
ficial seal  may  be  affixed  to  an  instrument  by  a  mere  im- 
pression upon  the  paper  or  other  material  on  which  such 
instrument  is  written.  En.  March  21,  1872. 

Cal.Rep.Cit.  64,   11. 

See  Code  Civ.  Proc,  sec.  14;  Pol.  Code,  sec.  14. 

§1629.     Provisions    abolishing     seals     made  -applicable. 

All  distinctions  between  sealed  and  unsealed  instruments 
are  abolished.    En.  March  21,  1872. 

Cal.Rep.Cit.   55,  566;   67,  448;   100,  622;   118,  656;   129,  389. 


1635-1037 


INTERPRETATION    OF    CONTRACTS. 


874 


TITLE    III. 

INTERPRETATION  OF  CONTRACTS. 

i   1635.  Uniformity  of  interpretation. 

§  1636.  Contracts,   how  to  be   interpreted. 

§   1637.  Intention   oi.   paitioi,   how   usceitaiued. 

§   1638.  Intention  to  be  ascertained  from   language. 

§  1639.  Interpretation   of  written   contracts. 

§  1640.  Writing,    when    disregarded. 

§   1641.  Effect   10   be   given   to   every   part   of   contract. 

§  1642.  Several  contracts,  when  taken  together. 

§   1643.  Interpretation  in  favor  of  contract. 

§   1644.  Words  to   be  understood  in   usual  sense. 

§   1645.  Technical  words. 

§  1646.  Law    of    place. 

§   1647.  Contracts   explained   by   circumstances. 

§   1648.  Contract  restricted  to   its  evident  object. 

§  1649.  Interpretation  in  sense  in  which  promisor  believed  promisee 

to    rely. 

§  1650.  Particular  clause  subordinate  to  general   intent. 

§  1651.  Contract,    partly   written   and   partly   printed. 

§   1652.  Repugnancies,   how   reconciled. 

§   1653.  Inconsistent  words  rejected. 

§   1654.  Words  to  be  taken  most  strongly  against  whom. 

§  1655.  Reasonable  stipulations,  when  Implied. 

§   1656.  Necessary  incidents  implied. 

§   1657.  Time  of  performance  of  contract. 

§   1658.  Time,  when  of  essence.      (Repealed.) 

§   1659.  When  joint  and  several. 

§   1660.  Same. 

^   1661.  Executed   and  executory  contracts,  what. 

§  1635.  Uniformity  of  interpretation.  All  contracts 
whether  public  or  private,  are  to  be  interpreted  by  the 
same  rules,  except  as  otherwise  provided  by  this  code. 
En.  March  21,  1872. 

Cal.Rep.Cit.   132,   19. 

§  1636.  Contracts,  iicw  to  be  interpreted.  A  contract 
must  be  so  interpreted  as  to  give  effect  to  the  mutual 
intention  of  the  parties  as  it  existed  at  the  time  of  con- 
tracting, so  far  as  the  same  is  ascertainable  and  lawful. 
En.  March  21,  1872. 

Cal.Rep.Cit.      57,  479;      81,  532;      95,  138;   104,  300;   111,  508; 
■119,  257;   126,  469;   132,     19;   135,     29. 

Parol  evidence  to  prove  intention:     See  Code  Civ.  Proc, 

sees.  1855  et  seq. 

§  1637.  fntention  of  parties,  liow  ascertained.  For  the 
purpose  of  ascertaining  the  intention  of  the  parties  to  a 
contract,  if  otherwise  doubtful,  the  rules  given  in  this 
chapter  are  to  be  applied.    En.  March  21,  1872. 


375  INTERPRETATION    OF    CONTRACTS.  §§  1638-1643 

Parol  evidence  with  respect  to  writings:  See  Code  Civ. 
Proc,  sees.  1855,  1856  et  seq. 

§  1638.  Intention  to  be  ascertained  from  language.  The 
language  of  a  contract  is  to  govern  its  interpretation,  if  the 
language  is  clear  and  explicit,  and  does  not  involve  an 
absurdity.     En.  March  21,  1872. 

Cal.Rep.Cit.   123,  100. 

§  1639.  Interpretation  of  written  contracts.  When  a 
contract  is  reduced  to  writing,  the  intention  of  the  parties 
is  to  be  ascertained  from  the  writing  alone,  if  possible; 
subject,  however,  to  the  other  provisions  of  this  title.  En. 
March  21,  1872. 

Cal.Rep.Cit.   62,   631. 

Parol  evidence  in  construing  writings:  See  Code  Civ. 
Proc,  sees.  1855  et  seq. 

§  1640.  Writing,  when  disregarded.  When,  through 
fraud,  mistake,  or  accident,  a  written  contract  fails  to  ex- 
press the  real  intention  of  the  parties,  such  intention  is  to 
be  regarded,  and  the  erroneous  parts  of  the  writing  disre- 
garded.   En.  March  21,  1872. 

Cal.Rep.Cit.   62,  631 ;   107,  355  ;   137,     75. 

See  Code  Civ.  Proc,  sec.  1856. 

§  1641.  Effect  to  be  given  to  every  part  of  contract. 
The  whole  of  a  contract  is  to  be  taken  together,  so  as  to 
give  effect  to  every  part,  if  reasonably  practicable,  each 
clause  helping  to  interpret  the  other.    En.  March  21,  1872. 

Cal.Rep.Cit.      02,  631;      62,  638;      81,  532;      81,  533;   104,  300; 

131,  484. 

§  1642.  Several  contracts,  when  taken  together.  Sev- 
eral contracts  relating  to  the  same  matters,  between  the 
same  parties,  and  made  as  parts  of  substantially  one  trans- 
action, are  to  be  taken  together.     En.  March  21,  1872. 

Cal.Rep.Cit.   62,  633;    84,  189;   131.  484;   133,  683;   137,  100. 

§  1643.  Interpretation  in  favor  of  contract.  A  contract 
must  receive  such  an  interpretation  as  will  make  it  law- 
ful, operative,  definite,  reasonable,  and  capable  of  being 
carried  into  effect,  if  it  can  be  done  without  violating  the 
intention  of  the  parties.    En.  March  21,  1872. 

Cal.Rep.Cit.     80,  618;     S3,     62;   119,  257;   123,  100;   132,     65; 

132,  566. 


§51644-1649  INTERPRETATION    OF    CONTRACTS.  376 

§  1644.  Words  to  be  understood  in  usual  sense.  The 
words  of  a  contract  are  to  be  understood  in  their  ordinary 
and  popular  sense,  rather  than  according  to  their  strict 
legal  meaning;  unless  used  by  the  parties  in  a  technical 
sense,  or  unless  a  special  meaning  is  given,  to  them  by 
usage,  in  which  case  the  latter  must  be  followed.  En. 
March  21,  1872. 

Cal.Rep.Cit.   57,  479;    87,  59;   95,  138;   125,  352;   132,  65. 

§  1645.  Technical  words.  Technical  words  are  to  be 
interpreted  as  usually  understood  by  persons  in  the  pro- 
fession or  business  to  which  they  relate,  unless  clearly 
used  in  a  different  sense.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,  479;   95,  138;   99,  372;   123,  143. 

§  1646.  Law  of  place.  A  contract  is  to  be  interpreted 
according  to  the  law  and  usage  of  the  place  where  it  is  to 
be  performed;  or,  if  it  does  not  indicate  a  place  of  per- 
formance, according  to  the  law  and  usage  of  the  place 
where  it  is  made.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,  4/9;   95,  138;   99,  372. 

Usage:    See  Code  Civ.  Proc,  sec.  1870,  subd.  12. 

§  1647.  Contracts  explained  by  circumstances.  A  con- 
tract may  be  explained  by  reference  to  the  circumstances 
under  which  it  was  made,  and  the  matter  to  whicn  it  re- 
lates.    En.  March  21,  1872. 

Cal.Rep.Cit.      77,457;      78,262;      83,     63;      99,  372 ;   126,  469  ; 
132,     65;   134,  328;   137,  100. 

§  1648.  Contract  restricted  to  its  evident  object.  How- 
ever broad  may  be  the  terms  of  a  contract,  it  extends  only 
to  those  things  concerning  which  it  appears  tiiaL  the  par- 
ties intended  to  contract.    En.  March  21,  1872. 

Cal.Rep.Cit.   62,   633. 

§  1649.  Interpretation  in  sense  in  which  promisor  be- 
lieved promisee  to  rely.  If  the  terms  of  a  promise  are  in 
any  respect  ambiguous  or  uncertain,  it  must  be  interpreted 
in  the  sense  in  which  the  promisor  believed,  at  the  time 
of  making  it,  that  the  promisee  understood  it.  En.  March 
21,  1872. 

Cal.Rep.Cit.      74,  534;   107,  354;   109,  228;   132,     65;   133.  179. 

Which  construction  preferred:  Code  Civ.  Proc,  sec. 
1864. 


377  INTERPRETATION     OP     CONTRACTS.  §§  1650-1654 

§  1650.  Particular  clause  subordinate  to  general  intent. 
Particular  clauses  of  a  contract  are  subordinate  to  its 
general  intent.    En.  March  21,  1872. 

Cal.Rep.Cit.   54,  370;   116,  67;   123,  100;    133,  658. 

See  infra,  sees.  1652,  1653. 

§  1651.     Contract,     partly    written     and     partly     printed. 

Where  a  contract  is  partly  written  and  partly  printed,  or 
where  part  of  it  is  written  or  printed  under  the  special 
directions  of  the  parties,  and  with  a  special  view  to  their 
intention,  and  the  remainder  is  copied  from  a  form  ori- 
ginally prepared  without  special  reference  to  the  particular 
parties  and  the  particular  contract  in  question,  the  written 
parts  control  the  'printed  parts,  and  the  parts  which  are 
purely  original  control  those  which  are  copied  from  a  form. 
And  if  the  two  are  absolutely  repugnant,  the  latter  must 
be  so  far  disregarded.  En.  March  21,  1872. 
Cal.Rep.Cit.   87,  239  ;    111,  509. 

§  1652.  Repugnancies,  how  reconciled.  Repugnancy  in 
a  contract  must  be  reconciled,  if  possible,  by  such  an  in- 
terpretation as  will  give  some  effect  to  the  repugnant 
clauses,  subordinate  to  the  general  intent  and  purpose  of 
the  whole  contract.    En.  March  21,  1872. 

Cal.Rep.Cit.  123,  100. 

§  1653.  Inconsistent  words  rejected.  Words  in  a  con- 
tract which  are  wholly  inconsistent  with  its  nature,  or 
with  the  main  intention  of  the  parties,  are  to  be  rejected. 
En.  March  21,  1872. 

Cal.Rep.Cit.  123,  100 ;   133.  658. 

§  1654.  Words  to  be  taken  most  strongly  against  whom. 
In  cases  of  uncertainty  not  removed  by  the  preceding  rules, 
the  language  of  a  contract  should  be  interpreted  most 
strongly  against  the  party  who  caused  the  uncertainty  to 
exist.  The  promisor  is  presumed  to  be  such  party;  except 
in  a  contract  between  a  public  officer  or  body,  as  such,  and 
a  private  party,  in  which  it  is  presumed  that  all  uncer- 
tainty was  caused  by  the  private  party.  En.  March  21, 
1872. 

Cal.Rep.Cit.      83,     62;   107,  355;   110.  550;   111.  508;   125,  482; 
131.  484;   133.  179;   136,  181. 


§§  1G55-1661  INTERPRETATION     OF     CONTRACTS.  378 

§  1655.  Reasonable  stipulations,  when  implied.  Stipu- 
lations which  are  necessary  to  make  a  contract  reasonable, 
or  conformable  to  usage,  are  implied,  in  respect  to  mat- 
ters concerning  which  the  contract  manifests  no  contrary 
intention.     En.  March  21,  1872. 

Cal.Rep.Cit.   99,   372. 

§  1656.  Necessary  incidents  implied.  All  things  that  in 
law  or  usage  are  considered  as  incidental  to  a  contract,  or 
as  necessary  to  carry  it  into  effect  ai-e  implied  therefrom, 
unless  some  of  them  are  expressly  mentioned  therein, 
when  all  other  things  of  the  same  class  are  deemed  to  be 
excluded.     En.  March  21,  1872. 

Cal.Rep.Cit.   62,  §30  ;   62,  637  ;    99,  372  ;   126,"  469. 

§  1657.  Time  of  performance  of  contract.  If  no  time  is 
specified  for  the  performance  of  an  act  required  to  be 
performed,  a  reasonable  time  is  allowed.  If  the  act  is  in 
its  nature  capable  of  being  done  instantly, — as,  for  ex- 
ample, if  it  consists  in  the  payment  of  money  only, — it 
must  be  performed  immediately  upon  the  thing  to  be  done 
being  exactly  ascertained.     En.  March  21,  1872. 

Cal.Rep.Cit.   97,  521  ;    119,  175  ;   124,  511. 

§  1658.  Time,  when  of  essence.  (Repealed.)  En.  March 
21,  1872.     Rep.  1873-4,  242. 

§  1659.  When  joint  and  several.  Where  all  the  parties 
who  unite  in  a  promise  receive  some  benefit  from  the  con- 
sideration, whether  past  or  present,  their  promise  is  pre- 
sumed to  be  joint  and  several.     En.  March  21,  1872. 

Cal.Rep.Cit.  129,  241;   129,  243;   133,  458. 

Contracts,  joint  and  several:    See  ante,  sees.  1430  et  seq. 

§  1660.  Same.  A  promise,  made  in  the  singular  num- 
ber, but  executed  by  several  persons,  is  presumed  to  be 
joint  and  several.    En.  March  21,  1872. 

Cal.Rep.Cit.  121,  606;   129,  269. 

§  1661.  Executed  and  executory  contracts,  what.  An 
executed  contract  is  one,  the  object  of  which  is  fully  per- 
formed.    All  others  are  executory.     En.  March  21,  1872. 

Cal.Rep.Cit.  81,  532;   126.  598. 


378 


UNLAWFUL    CONTRACTS. 


§§  1667-1670 


TITLE    IV. 

UNLAWFUL    CONTRACTS. 

What  Is  unlawful. 

Certain  contracts  unlawful. 

Penalties  void.      (Repealed.) 

Contract  fixing  damages,  void. 

Exception. 

Restraints  upon  legal  proceedings.      (Repealed.) 

Contract  in  restraint  of  trade,  void. 

Exception  in  favor  of  tale  of  good  will. 

Exception  in  favor  of  partnership  arrangements. 

Contract  in  restraint  of  marriage,  void. 


§  1667. 
§  1668. 
§  1669. 
§  1670. 
§  1671. 
§  1672. 
§  1673. 
§  1674. 
§  1675. 
§  1676. 

§  1667.     What  is  unlawful.    That  is  not  lawful  which  is: 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of  express  law,  though  not  ex- 
pressly prohibited;  or, 

3.  Otherwise  contrary  to  good  morals.     En.   March  21, 

1872. 

Cal.Rep.Cit.     68,     30;     79,680;      81,373;  81,515;     83,177; 

84,  415;      91,  117;   112,  204;   117,  244;  119,  601;   123,  609; 

125,  122;   125,  123;   127,     35;   131,  488.  Subd.   1  —  96,  109. 
Subd.   2  —  96,  109.       Subd.   3—127,     35. 

Act  to  prevent  combinations  to  obstruct  the  sale  of  live- 
stock:    See  post,  Appendix,  title  Animals. 

Contracts  in  restraint  of  trade:  See  sees.  1673-1674,  infra. 
Contracts  in  restraint  of  marriage:  See  sec.  1676,  infra. 
Conditions,  when  void:    See  ante,  sees.  709,  710,  711. 


§  1668.  Certain  contracts  unlawful.  All  contracts  which 
have  for  their  object,  directly  or  indirectly,  to  exempt  any 
one  from  responsibility  for  his  own  fraud,  or  willtul  in- 
jury to  the  person  or  property  of  another,  or  violation  of 
law,  whether  willful  or  negligent,  are  against  the  policy  of 
the  law.    En.  March  21,  1S72. 

Cal.Rep.Cit.  93,  457. 


§  1669.     Penalties    void. 
1872.     Rep.  1873-4,  242. 


(Repealed.)      En.    March    21, 


§  1670.  Contract  fixing  damages,  void.  Every  contract 
by  which  the  amount  of  damage  to  be  paid,  or  other  com- 
pensation to  be  made,  for  a  breach  of  an  obligation,  is  de- 
termined in  anticipation  thereof,  is   to  that  extent  void. 


§§  lG71-lt;T4  UNLAW'FUL    CONTRACTS.  380 

except   as   expressly   provided   in   the   next   section.     En. 

Marcii  21,  1872. 

Cal.Rep.Cit.  75,209;  77,472;      78,609;      87,450;  90,     82 

90,119;  90,120;  9S.       4 ;      98,       8  ;      98,       9;  100,     78 

114,     tJG;  123,       5;  123,     21;    125,  565;   125,  567;  134,  328 
135,  404. 

§  1671.  Exception.  The  parties  to  a  contract  may  agree 
therein  upon  an  amount  which  shall  be  presumed  to  be 
the  amount  of  damage  sustained  by  a  breach  thereof,  when, 
from  the  nature  of  the  case,  it  would  be  impracticable  or 
extremely  difhcult  to  fix  the  actual  damage.  En.  March  21, 
1872. 


Cal.Rep.Cit.  66,538;      75,209;      77,472 

87,450;  90,     82;      90,119;      90,120 

98,       9;  100,     78;    110,  GbO ;   123,       5 

125,  567;  135,  405. 


78,  609 

98,        4 

123,        9 


82,  383; 

98,        8; 
125,  566; 


§  1672.     Restraints  upon  legal  proceedings.     (Repealed.) 
En.  March  21,  1872.     Rep.  1873-4,  242. 
Cal.Rep.Cit.   82,   383. 

§  1673.  Contract  in  restraint  of  trade,  void.  Every  con- 
tract by  which  any  one  is  restrained  from  exercising  a 
lawful  profession,  trade,  or  business  of  any  kind,  otherwise 
than  is  provided  by  the  next  two  sections,  is  to  that  extent 
void.     En.  March  21.  1872. 

Cal.Rep.Cit.     96,  513;   101,  298;   102,  510;   110,  153;   110,  679; 
115,  604;   118,  357;   124,  431;   124,  433;   124,  434;   126,  180. 

§  1674.  Exception  in  favor  of  sale  of  good  will.  One  who 
sells  the  good  will  of  a  business  may  agree  with  the  buyer 
to  refrain  from  carrying  on  a  similar  business  within  a 
specified  county,  city,  or  a  part  thereof,  so  long  as  the 
buyer,  or  any  person  deriving  title  to  the  good  will  from 
him,  carries  on  a  like  business  therein.  En.  March  21, 
1872. 

Cal.Rep.Cit.- 101,  298;   102,  510;   106,  336;    110,  153;   110,  679; 
lis,  357;   124,  431;    124,  433;   126,  180;    127,  181. 

Good  will  of  a  business  defined:  Sec.  992,'  ante. 

Good  will  of  a  business  is  property:    Sec.  993,  ante. 

Sale  of  good  will,  implied  warranty  not  to  draw  away 
customers:    Sec.  1776,  post. 

Partner  cannot  dispose  of  good  will:  See  post,  sec.  2430, 
subd.  2. 


381  RESCISSION.  §§  1675-1689 

§  1675.  Exception  in  favor  of  partnership  arrangements. 
Partners  may,  upon  or  in  anticipation  of  a  dissolution  ot 
the  partnership,  agree  that  none  of  them  will  carry  on  a 
similar  business  within  the  same  city  or  town  where  the 
partnership  business  has  been  transacted,  or  within  a  speci- 
fied part  thereof.    En.  March  21,  1872. 

Cal.Rep.Cit.  102,  510;   118,  357. 

§  1676.  Contract  in  restraint  of  marriage,  void.  Every 
contract  in  restraint  of  the  marriage  of  any  person,  other 
than  a  minor,  is  void.    En.  March  21,  1872. 

Conditions  in  restraint  of  marriage:    bee  ante,  sec.  710. 


TITLE    V. 

EXTINCTION  OF  CONTRACTS. 

Chapter  I.     Contracts,  How  Extinguished,  §  1682. 
II.     Rescission,  §§  1688-1691. 
III.     Alteration  and  Cancellation,  §§1697-1701. 

CHAPTER    I. 

CONTRACTS,    HOW    EXTINGUISHED. 

§   16S2.      Contract,  how  extinguished. 

§  1682.'  Contract,  how  extinguished.  A  contract  may  be 
extinguished  in  like  manner  with  any  other  oliligation,  and 
also  in  the  manner  prescribed  by  this  title.  En.  March  21, 
1872. 

Cal.Rep.Cit.  110,  263. 

CHAPTER    II. 

RESCISSION. 

§  1688.  Rescission  extinguishes  contract. 

§   1689.  When  party  may   rescind. 

I   1690.  When  ytipulaiions  against  right  to  rescind  do  not  defeat  it. 

§   1691.  Rescission,   how   effected. 

§  1688.  Rescission  extinguishes  contract.  A  contract  is 
extinguished  by  its  rescission.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  639;    93,  595. 

§  1689.  When  party  may  rescind.  A  party  to  a  con- 
tract may  rescind  the  same  in  the  following  cases  only; 


86, 

251; 

98,  499; 

71, 

440; 

82,  398; 

129, 

85; 

134,  548. 

136, 

635. 

Subd.   3— 

133, 

444. 

Subd.   5— 

59 1690,  1691  RESCISSION.  382 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party 
jointly  contracting  with  him,  was  given  by  mistake,  or  ob- 
tained through  duress,  menace,  fraud,  or  undue  influence, 
exercised  by  or  with  the  connivance  of  the  party  as  to 
whom  he  rescinds,  or  of  any  other  party  to  the  contract 
jointly  interested  with  such  party; 

2.  If,  through  the  fault  of  the  party  as  to  whom  he  re- 
scinds the  consideration  for  his  obligation  fails,  in  whole 
or  in  part; 

3.  If  such  consideration  becomes  entirely  void  from  any 
cause; 

4.  If  such  consideration,  before  it  is  rendered  to  him, 
fails  in  a  material  respect,  from  any  cause;  or, 

5.  By  consent  of  all  the  other  parties.     En.  March  21. 

1872. 

Cal.Rep.Cit.  66,  639;  78,  134;  85,  30; 
114,  167;   137.  290.       Subd.   1  —  70,  254; 

85,     31;      92,     37;      94,366;      94,646; 

Subd.  2—129,  372;  131,  54G  ;  133,  443; 
133,  443.       Subd.   4  —  93,  594;   131,  546; 

63,  577. 

See  post,  sees.  3406  et  seq.,  on  rescission. 
Rescinding  sale  of  personalty  for  nonpayment  of  price: 
See  post,  sec.  1749. 

§  1690.  When  stipulations  against  right  to  rescind  do 
not  defeat  it.  A  stipulation  that  errors  of  description  shall 
not  avoid  a  contract,  or  shall  be  the  subject  of  compensa- 
tion, or  both,  does  not  take  away  the  right  of  rescission 
for  fraud,  nor  for  mistake,  where  such  mistake  is  in  a 
matter  essential  to  the  inducement  of  the  contract,  and  is 
not  capable  of  exact  and  entire  compensation.  En.  March 
21,  1872. 

§  1691.  Rescission,  iiow  effected.  Rescission,  when  not 
effected  by  consent,  can  be  accomplished  only  by  the  use, 
on  the  part  of  the  party  rescinding,  of  reasonable  diligence 
to  comply  with  the  following  rules: 

1.  He  must  rescind  promptly,  upon  discovering  the  facts 
which  entitle  him  to  rescind,  if  he  is  free  from  duress, 
menace,  undue  influence,  or  disability,  and  is  aware  of  his 
right  to  rescind;  and, 

2.  He  must  restore  to  the  other  party  everything  of  value 
which  he  has  received  from  him  under  the  contract;   or 


383  ALTERATION    AND    CANCELLATION.         §§  1697-169a 

must  offer  to  restore  the  same,  upon  condition  that  such 
party  shall  do  likewise,  unless  the  latter  is  unable  or  posi- 
tively refuses  to  do  so.    En.  March  21,  1872. 


Cal.Rep.Cit. 

78,  398; 

85, 

531 

96, 

282; 

98, 

499; 

103,  292; 

109,  426; 

110,  379  ; 

119, 

264 

119, 

648; 

123, 

16; 

124,  268; 

124,  544; 

129,  85; 

132, 

280 

132, 

521; 

133, 

444. 

Subd.  1— 

54,  190; 

70,  254; 

78, 

396 

85, 

31; 

92, 

37; 

99,  227; 

99,  357. 

Subd.  2 

—  71, 

229 

85, 

190; 

86, 

361; 

87,  60 ; 

92,  37; 

99,  357; 

123, 

642 

130, 

433. 

Rescission  of  contracts:    See  sees.  3406-3408,  post. 


CHAPTER    III. 
ALTERATION    AND    CANCELLATION. 

§  1697.  Alteration  of  verbal  contract. 

§  1698.  Written  contracts,  how  modified. 

§  1699.  E.xtinction  by   cancellation,   etc. 

§  1700.  Extinction  by  unauthorized  alteration. 

§  1701.  Alteration  of  duplicate,  not  to  prejudice. 

§  1697.  Alteration  of  verbal  contract.  A  contract  not 
in  writing  may  be  altered  in  any  respect  by  consent  of 
the  parties,  in  writing,  without  a  new  consideration,  and 
is  extinguished  thereby  to  the  extent  of  the  new  alteration. 
En.  March  21,  1872.     Am'd.  1873-4,  242. 

Cal.Rep.Cit.  110,  263;   129,  305;   134,  29. 

Alterations  in  written  instrument  to  be  accounted  for 
by  the  party  producing  it  in  evidence:  Code  Civ.  Proc, 
sec.  1982. 

§  1698.     Written  contracts,  how  modified.    A  contract  in 

writing  may  be  altered  by  a  contract  in  writing,  or  by  an 

executed  oral  agreement,  and  not  otherwise.     En.  Mareh 

21,  1872.     Am'd.  1873-4,  243. 

Cal.Rep.Cit.      66,115;      68,     28;      77,388;      82,546;      95,634 
103,  167;   1U4,  170;   112,     52;   112,  635;   112,  636;   117,  211 
120,  659;   121,  175;   123,  686;   126,  598;   127,  657;   127,  658; 
129,  305;   132,  136. 

Parol  evidence  to  alter  writings:  See  Code  Civ.  Proc, 
sec.  1856;  and  see  ante,  sec.  1639. 

§  1699.  Extinction  by  cancellation,  etc.  The  destruction 
or  cancellation  of  a  written  contract,  or  of  the  signature 
of  the  parties  liable  thereon,  with  intent  to  extinguish  the 
obligation  thereof,  extinguishes  it  as  to  all  the  parties  con- 
senting to  the  act.    En.  March  21,  1872. 

Cal.Rep.Cit.   87,   584. 


§§  1700,  1701         ALTERATION    AND    CANCELLATION.  384 

§  1700.  Extinction  by  unautiiorized  alteration.  The  In- 
tentional destruction,  cancellation,  or  material  alteration  of 
a  written  contract,  by  a  party  entitled  to  any  beuellt  un- 
der it,  or  with  his  consent,  extinguishes  all  the  executory 
obligations  of  the  contract  in  his  favor,  against  parties  who 
do  not  consent  to  the  act.    En.  March  21,  1872. 

§  1701.  Alteration  of  duplicate  not  to  prejudice.  Where 
a  contract  is  executed  in  duplicate,  an  alteration  or  de- 
struction of  one  copy,  while  the  other  exists,  is  not  within 
the  provisions  of  the  last  section.    En.  March  21,  1872. 


PART    III. 


OBLIGATIONS    IMPOSED    BY    LAW. 

§  170S.  Abstinence  from  injury. 

§  1709.  Fraudulent  deceit. 

5  1710.  Deceit,  whiat. 

§  1711.  Deceit  upon  the  public,  etc. 

§  1712.  Restoration  of  thing  wrongfully  acquired. 

§  1713.  When  demand  necessarj'. 

§  1714.  Responsibility  for  willful  acts,  negligence,  etc. 

§  1715.  Other   obligations. 

§  1708.  Abstinence  from  injury.  Every  person  is  bound, 
without  contract,  to  abstain  from  injuring  the  person  or 
property  of  another,  or  infringing  upon  any  of  his  rights. 
En.  March  11,  1872. 

Cal.Rep.Cit.   110,  3S5  ;    111,  45;    118,  321;   123,  44. 

As  to  what  injuries  are  criminal:  See  Pen.  Code,  sees. 
346-367. 

§  1709.     Fraudulent  deceit.     One  who  willfully  deceives 

another  with  intenc  to  induce  him  to  alter  his  position  to 

his   injury   or   risk,   is   liable   for   any   damage   which   he 

thereby  suffers.     En.  March  21,  1872. 

Cal.Rep.Cit.     65,326;      65,327;      76,193;      77,     25;      99,185; 
134,  444;    136,     28. 

§  1710.  Deceit,  wliat.  A  deceit,  within  the  meaning  of 
the  last  section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true, 
by  one  who  does  not  believe  it  to  be  true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  has  no  reasonable  ground  for  believing  it  to  be 
true; 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to 
disclose  it,  or  who  gives  information  of  other  facts  which 
are  likely  to  mislead  for  want  of  communication  of  that 
fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing 

it.     En.  March  21,  1872. 

Cal.Rep.Cit.      65,  326;      65,  327;      76,  193;      77,     26;      79,  238; 
81,       6;      82,     82;      96,440;      99,186;   136,     28. 

Fraud  actual  and  constructive:    See  sees.  1571  et  seq. 
Civ.   Code— 17 


§§  1711-1715  OBLIGATIONS    IMPOSED    BY    LAW.  SSG 

§  1711.  Deceit  upon  the  public,  etc.  One  who  practices 
a  deceit  witli  intent  to  defraud  the  public,  or  a  particular 
class  of  persons,  is  deemed  to  have  intended  to  defraud 
every  individual  in  that  class,  who  is  actually  misled  by 
the  deceit.    En.  March  11,  1872. 

§  1712.     Restoration  of  thing  wrongfully  acquired.     One 

who  obtains  a  thing  without  the  consent  of  its  owner,  or 
by  a  consent  afterward  rescinded,  or  by  an  unlawful  ex- 
action which  the  owner  could  not  at  the  time  prudently 
refuse,  must  restore  it  to  the  person  from  whom  it  was 
thus  obtained,  unless  he  has  acquired  a  title  thereto  supe- 
rior to  that  of  such  other  person,  or  unless  the  transac- 
tion was  corrupt  and  unlawful  on  both  sides.  En.  March 
11,  1872. 

§  1713.  When  demand  necessary.  The  restoration  re- 
quired by  the  last  section  must  be  made  without  demand, 
except  where  a  thing  is  obtained  by  mutual  mistake,  in 
which  case  the  party  obtaining  the  thing  is  not  bound  to 
return  it  until  he  has  notice  of  the  mistake,  inn.  March 
11,  1872. 

§  1714.  Responsibility  for  willful  acts,  negligence,  etc. 
Every  one  is  responsible,  not  only  for  the  result  of  his 
willful  acts,  but  also  for  an  injury  occasioned  to  another 
by  his  want  of  ordinary  care  or  skill  in  the  management 
of  his  property  or  person,  except  so  far  as  the  latter  has, 
willfully  or  by  want  of  ordinary  care,  brought  the  injury 
upon  himself.  The  extent  of  liability  in  such  cases  is  de- 
fined by  the  title  on  compensatory  relief.  En.  March  11, 
1872. 

Cal.Rep.Cit.     66.  586;     68,  459;     95.  291;   118.  321;   123,     44; 
123,  649. 

Compensatory  relief:    See  post,  sees.  3281  et  seq. 

§  1715.  Other  obligations.  Other  obligations  are  pre- 
scribed by  divisions  I  and  II  of  this  code.  En.  March  11, 
1872. 

Cal.Rep.Cit.  88.  553. 


PART    IV. 


OBLIGATIONS   ARISING  FROM   PARTICULAR  TRANS- 
ACTIONS. 

Title  I.  Sale,  §§1721-1798. 

IL  Exchange,  §§1804-1807. 

m.  Deposit,  §§  1813-1S78. 

IV.  Loan,  §§1884-1920. 

V.  Hiring,  §§1925-1959. 

VL  Service,  §§1965-2079. 

VIL  Carriage,  §§  2085-2209. 

Vm.  Trust,  §§  2215-2289. 

IX.  Agency,  §§  2295-2389. 

X.  Partnership,  §§    2395-2520. 

XL  Insurance,  §§  2527-2766. 

XII.  Indemnity,  §§2772-2781. 

XIII.  Guaranty,  §§  2787-2866. 

XIV.  Lien,  §§  2872-3080. 

XV.  Negotiable  Instruments,  §§  3086-3262. 

XVI.  Genera]  provisions,  §  3268. 


'      TITLE    I. 

SALE. 

Chapter  I.     General   Provisions,    §§1721-1741. 

XL     Rights  and  Obligations  of  the  Seller,   §§1748- 

1778. 
III.     Rights  and  Obligations  of  the  Buyer,  §§  1784- 

1786. 
rV.     Sale  by  Auction,  §§1792-1798. 


CHAPTER    I. 

GENERAL    PROVISIONS. 

Article  I.     Sale,  §§  1721-1722. 

II.      Agreements  for  Sale,   §§  1726-1734. 
III.     Form  of  the  Contract,  §§  1739-1741. 


§§  1721-1729  GENERAL    PROVISIONS.  888 

ARTICLE    I. 

SALE. 
§  1721.     Sale,  what. 
§  1722.     Subject  of  sale. 

§  1721.  Sale,  what.  Sale  is  a  contract  by  which,  for  a 
pecuniary  consideration,  called  a  price,  one  transfers  to 
another  an  interest  in  property.    En.  March  21,  1872. 

Cal.Rep.Cit.   97,   71;   99,   93. 

§  1722.  Subject  of  sale.  The  subject  of  sale  must  be 
property,  the  title  to  which  can  be  immediately  transferred 
from  the  seller  to  the  buyer.    En.  March  21,  1872. 

Cal.Rep.Cit.  97,   71. 

ARTICLE    II. 

AGREEMENTS     FOR     SALE. 

§  1726.  Agreement  for  sale. 

§   1727.  Agreement  to  sell. 

§   1728.  Agreement  to  buy. 

§   1729.  Agreement  to  sell  and  buy. 

§   1730.  What  may  be  tlie  subject  of  the  contract. 

§   1731.  Agreement  to  sell  real  property. 

i   1732.  Form  of  grant  required  by  such  contract.      (Repealed.) 

§  1733.  Usual   common    law   covenants   required  by   such  contracts, 

when. 

§  1734.  Form  of  such  covenants. 

§  1726.  Agreement  for  sale.  An  agreement  for  sale  Is 
either: 

1.  An  agreement  to  sell; 

2.  An  agreement  to  buy;  or, 

3.  A  mutual  agreement  to  sell  and  buy.  En.  March  21, 
1872. 

Cal.Rep.Cit.  "87,  54  ;   95,  137. 

§  1727.  Agreement  to  sell.  An  agreement  to  sell  is  a 
contract  by  which  one  engages,  for  a  price,  to  transfer  to 
another  the  title  to  a  certain  thing.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,  379;   98,  380. 

§  1728.  Agreement  to  buy.  An  agreement  to  buy  is  a 
contract  by  which  one  engages  to  accept  from  another, 
and  pay  a  price  for  the  title  to  a  certain  thing.  En.  March 
21,  1872. 

§  1729.  Agreement  to  sell  and  buy.  An  agreement  to 
sell  and  buy  is  a  contract  by  which  one  engages  to  trans- 


SS9  GENERAL    PROVISIONS.  §§  1730-1734 

fer  the  title  to  a  certain  tiling  to  another,  who  engages  to 
accept  the  same  from  him  and  to  pay  a  price  therefor.  En. 
March  21,  1872. 

Cal.Rep.Cit.   63,  577  ;    87,  54  ;   98,  381. 

§  1730.     What  may  be  the  subject  of  the  contract.    Any 

property  which,  if  in  existence,  might  be  the  subject  of 
sale,  may  be  the  subject  of  an  agreement  for  sale,  whether 
in  existence  or  not.    En.  March  21,  1872. 
Cal.Rep.Cit.   95,   137. 

§  1731.  Agreement  to  sell  real  property.  An  agreement 
to  sell  real  property  binds  the  seller  to  execute  a  convey- 
ance in  form  sufficient  to  pass  the  title  to  the  property. 
En.  March  21,  1872.    Am'd.  1873-4,  243. 

Cal.Rep.Cit.  109,   563. 

§  1732.  Form  of  grant  required  by  such  contract.  (Re- 
pealed.)    En.  March  21,  1872.     Rep.  1873-4,  243. 

§  1733.  Usual  common  law  covenants  required  by  such 
contracts,  when.  An  agreement  on  the  part  of  a  seller  of 
real  property  to  give  the  usual  covenants,  binds  him  to 
insert  in  the  grant  covenants  of  "seisin,"  "quiet  enjoy- 
ment," "further  assurance,"  "general  warranty,"  and 
"against  incumbrances."    En.  March  21,  1872. 

§  1734.  Form  of  such  covenants.  The  covenants  men- 
tioned in  the  last  section  must  be  in  substance  as  follows: 
"The  party  of  the  first  part  covenants  with  the  party  of 
the  second  part,  that  the  former  is  now  seized  in  fee  simple 
of  the  property  granted;  that  the  latter  shall  enjoy  the 
same  without  any  lawful  disturbance;  that  the  same  is  free 
from  all  incumbrances;  that  the  pp.rty  of  the  first  part, 
and  all  persons  acquiring  any  interest  in  the  same  through 
or  for  him,  will,  on  demand,  execute  and  deliver  to  the 
party  of  the  second  part,  at  the  expense  of  the  latter,  any 
further  assurance  of  the  same  that  may  be  reasonably  re- 
quired; and  that  the  party  of  the  first  part  will  warrant  to 
the  party  of  the  second  part  all  the  said  property  against 
every  person  lawfully  claiming  the  same."  En.  March  21, 
1872. 


5§  1739-1741  GENERAL    PROVISIONS.  890 


ARTICLE    III. 

FORM    OF    THE    CONTRACT. 

J  1739.     Contract  for  sale  of  personal  property. 

§  1740.     Contract  to  manufacture. 

§  1741.     Contract  for  sale  of  real  property. 

§  1739.  Contract  for  sale  of  personal  property.  No  sale 
of  personal  property,  or  agreement  to  buy  or  sell  it  for  a 
price  of  two  hundred  dollars  or  more,  is  valid,  unless: 

1.  The  agreement  or  some  note  or  memorandum  thereof 
be  in  writing,  and  subscribed  by  the  party  to  be  charged, 
or  by  his  agent;  or, 

2.  The  buyer  accepts  and  receives  part  of  the  ihing  sold, 
or  when  it  consists  of  a  thing  in  action,  part  of  the  evi- 
dences thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the 

price.     En.  March  21,  1872.     Am'd.  1873-4,  243. 

Cal.Rep.Cit.      67,     93;      68,     17;      70,  400;      70,  402;      91,  670; 
105,  519;   119,  551;   123,  549. 

Statute  of  frauds:    See  Code  Civ.  Proc,  sees.  1971-1974. 

§  1740.  Contract  to  manufacture.  An  agreement  to 
manufacture  a  thing,  from  materials  furnished  by  the 
manufacturer,  or  by  another  person,  is  not  within  the  pro- 
visions of  the  last  section.    En.  March  21,  1872. 

Cal.Rep.Cit.  91,   670. 

§  1741.  Contract  for  sale  of  real  property.  No  agree- 
ment for  the  sale  of  real  property,  or  of  an  interest  therein, 
is  valid,  unless  the  same,  or  some  note  or  memorandum 
thereof,  be  in  writing,  and  subscribed  by  the  party  to  be 
charged,  or  his  agent,  thereunto  authorized,  in  writing; 
but  this  does  not  abridge  the  power  of  any  court  to  com- 
pel the  specific  performance  of  any  agreement  for  the 
sale  of  real  property  in  case  of  part  performance  thereof. 
En.  March  21,  1872.     Am'd.  1873-4,  243. 

Cal.Rep.Cit.   64,  26;    78,  534;    87,  54;    91,  446;   93.  495. 

Statute  of  frauds:    See  Code  Civ.  Proc,  sees.  1971-1974. 


391  RIGHTS  AND   OBLIGATIONS   OF   SELLER.        §§  1748-1753 

CHAPTER    II. 
RIGHTS    AND     OBLIGATIONS     OF    THE     SELLER. 

Article  I.     Rights   and   Duties  before   Delivery,   §§  1748, 1749. 
II.      Delivery,   §§  1753-175S. 
III.      "Warranty,  §§  1763-1778. 

ARTICLE    I. 
RIGHTS     AND     DUTIES     BEFORE     DELIVERY. 

§  1748.      When  seller  must  act  as  depositary. 
§  1749.     When  seller  may  resell. 

§  1748.  When  seller  must  act  as  depositary.  After  per- 
sonal property  has  been  sold,  and  until  the  delivery  is  com- 
pleted, the  seller  has  the  rights  and  obligations  of  a  de- 
positary for  hire,  except  that  he  must  keep  the  property, 
without  charge,  until  the  buyer  has  had  a  reasonable  op- 
portunity to  remove  it.     En.  March  21,  1872. 

§  1749.  When  seller  may  resell.  If  a  buyer  of  personal 
property  does  not  pay  for  it  according  to  contract,  and  it 
remains  in  the  possession  of  the  seller  after  payment  is 
due,  the  seller  may  rescind  the  sale  or  may  enforce  his 
lien  for  the  price,  in  the  manner  prescribed  by  the  title  on 
liens.     En.  March  21,  1872. 

Cal.Rep.Cit.   58,  435;    86,  536;   120,  419;   120.  420. 

Rescission  of  contracts,  generally:  See  ante,  sees.  1688 
et  seq;  post,  sees.  3406  et  seq. 

Rescission  of  contract  for  sale  by  buyer:  See  post,  sees. 
1785,  1786. 

Liens:  See  post,  sees.  2872  et  seq. 

ARTICLE    II. 

DELIVERY. 

§  1753.  Delivery  on  demand. 

§  1754.  Delivery,   where  made. 

§  1755.  Expense   of  transportation. 

§  1756.  Notice  of  election  as  to  delivery. 

I  1757.  Buyer's  directions  as  to  manner  of  sending  thing  sold. 

S  1758.  Delivery  to  be  within  reasonable  hours. 

§  1753.  Delivery  on  demand.  One  who  sells  personal 
property,  whether  it  was  in  his  possession  at  the  time  of 
sale  or  not,  must  put  it  into  a  condition  fit  for  delivery,  and 


§§1754-1758        RIGHTS    AND    OBLIGATIONS    OF    SELLER  392 

deliver  it  to  the  buyer  witliin  a  reasonable  time  after  de- 
mand, unless  he  has  a  lien  thereon.    En.  March  21,  1872. 
Cal.Rep.Cit.   82,   479. 

Performance  generally:    See  ante,  sees.  1473,  1485  et  seq. 
Delivery  sufficient  as  to  third  persons:     See  sec.  3440, 
post. 

§  1754.  Delivery,  where  made.  Personal  property  sold 
Is  deliverable  at  the  place  where  it  is  at  the  time  of  the 
sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence, 
it  is  deliverable  at  the  place  where  it  is  produced.  En. 
March  21,  1872. 

Cal.Rep.Cit.  84,  213. 

§  1755.  Expense  of  transportation.  One  who  sells  per- 
sonal property  must  bring  it  to  his  own  door,  or  other  con- 
venient place,  for  its  acceptance  by  the  buyer,  but  fur- 
ther transportation  is  at  the  risk  and  expense  of  the 
buyer.    En.  March  21,  1872. 

§  1756.  Notice  of  election  as  to  delivery.  When  either 
party  to  a  contract  of  sale  has  an  option  as  to  the  time, 
place,  or  manner  of  delivery,  he  must  give  the  other  party 
reasonable  notice  of  his  choice;  and  if  he  does  not  give 
such  notice  within  a  reasonable  time,  his  right  of  option 
is  waived.     En.  March  21,  1872. 

§  1757.  Buyer's  directions  as  to  manner  of  sending 
thing  sold.  If  a  seller  agrees  to  send  the  thing  sold  to 
the  buyer,  he  must  follow  the  directions  of  the  latter  as 
to  the  manner  of  sending,  or  it  will  be  at  his  own  risk 
during  its  transportation.  If  he  follows  such  directions, 
or  if,  in  the  absence  of  special  directions,  he  uses  ordinary 
care  in  forwarding  the  thing,  it  is  at  the  risk  of  the  buyer. 
En.  March  21,  1872. 

§  1758.  Delivery  to  be  within  reasonable  hours.  The 
delivery  of  a  thing  sold  can  be  offered  or  demanded  only 
•within  reasonable  hours  of  the  day.     En.  March  21,  1872. 


393  RIGHTS   AND   OBLIGATIONS   OF   SELLER.        §§  1763-1767 

ARTICLE    III. 

WARRANTY. 

§  1763.  Warranty,  what. 

§  1764.  No  implied  warranty  in  mere  contract  of  sale. 

§  1765.  Warranty  of  title  to  personal  property. 

§  1766.  Warranty  on  sale  by  sample. 

§  1767.  When  seller  knows  that  buyer  relies  on  his  statements,  etc, 

§  1768.  Merchandise  not  in  existence. 

§  1769.  Manufacturer's  warranty   against  latent  defects. 

I  1770.  Thing  bought  for  particular  purpose. 

§  1771.  When  thing  cannot  be  examined  by  buyer. 

§  1772.  Trade-marks. 

§  1773.  Other  marks. 

I  1774.  Warranty  on  sale  of  written  instrument. 

§  1775.  Warranty  of  provisions  for  domestic  use. 

§  1776.  Warranty  on  sale  of  good-will. 

§  1777.  Warranty  upon  judicial  sale. 

§  1778.  Effect  of  general  warranty. 

§  1763.  Warranty,  what.  A  warranty  is  an  engagement 
by  which  a  seller  assures  to  a  buyer  the  existence  of  some 
fact  affecting  the  transaction,  whether  past,  present,  or 
future.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,   239. 

§  1764.  No  implied  warranty  in  mere  contract  of  sale. 
Except  as  prescribed  by  this  article,  a  mere  contract  of 
sale  or  agreement  to  sell  does  not  imply  a  warranty.  En. 
March  21,  1872. 

Cal.Rep.Cit.      65,  274;   66,  239;   92,  123. 

Warranty  of  genuineness  on  exchange  of  money:  Post, 
sec.  1807. 

§  1765.     Warranty    of    title    to    personal    property.     One 

who  sells  or  agrees  to  sell  personal  property  as  his  own, 
thereby  warrants  that  he  has  a  good  and  unincumbered 
title  thereto.    En.  March  21,  1872. 

Cal.Rep.Cit.  113,   353. 

§  1766.  Warranty, on  sale  by  sample.  One  who  sells  or 
agrees  to  sell  goods  by 'sample,  thereby  warrants  the  bulk 
to  be  equal  to  the  sample.     En.  March  21,  1872. 

§  1767.  When  seller  knows  that  buyer  relies  on  his 
statements,  etc.  One  who  sells  or  agrees  to  sell  personal 
property,  knowing  that  the  buyer  relies  upon  his  advice 
or  judgment  thereby  warrants  to  the  buyer  that  neither 
the  seller,  nor  any  agent  employed  by  him  in  the  tran- 


S§  1768-1773        RIGHTS   AND   OBLIGATIONS   OF   SELLER.  394 

saction,  knows  the  existence  of  any  fact  concerning  the 
thing  sold  which  would  to  his  knowledge  destroy  the 
buyer's  inducement  to  buy.     En.  March  21,  1872. 

§  1768.  Merchandise  not  in  existence.  One  who  agrees 
to  sell  merchandise  not  then  in  existence,  thereby  warrants 
that  it  shall  be  sound  and  merchantable  at  the  place  of 
production  contemplated  by  the  parties,  and  as  nearly  so, 
at  the  place  of  delivery,  as  can  be  secured  by  reasonable 
care.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  561 ;   76,  214 ;   116,  245. 

§  1769.     Manufacturer's  warranty  against  latent  defects. 

One  who  sells  or  agrees  to  sell  an  article  of  his  own 
manufacture,  thereby  warrants  it  to  be  free  from  any 
latent  defect,  not  disclosed  to  the  buyer,  arising  from  the 
process  of  manufacture,  and  also  that  neither  he  nor  his 
agent  in  such  manufacture  has  knowingly  used  improper 
materials  therein.  En.  March  21,  1872. 
Cal.Rep.Cit.  67,  613  ;   75,  561 ;   134,  328. 

§  1770.  Thing  bought  for  particular  purpose.  One  who 
manufactures  an  article  under  an  order  for  a  particular 
purpose,  warrants  by  the  sale  that  it  is  reasonably  fit 
for  that  purpose.     En.  March  21,  1872. 

Cal.Rep.Cit.     63,  576;      65,  274;     67,  613;      75,  561;      76,  214; 
120,  229;   120,  231;   134,  328. 

§  1771.     When    thing    cannot    be    examined     by    buyer. 

One  who  sells  or  agrees  to  sell  merchandise  inaccessible 
to  the  examination  of  the  buyer,  thereby  warrants  that  it 
is  sound  and  merchantable.     En.  March  21,  1872. 
Cal.Rep.Cit.   05,  275;   76,  214. 

§  1772.  Trade-marks.  One  who  sells  or  agrees  to  sell 
any  article  to  which  there  is  affixed  or  attached  a  trade- 
mark, thereby  warrants  that  mark .  to  be  genuine  and 
lawfully  used.    En.  March  21,  1872.' 

Selling  goods  with  counterfeit  trade-mark:  See  Pen. 
Code,  sec.  351. 

§  1773.  Other  marks.  One  who  sells  or  agrees  to  sell 
any  article  to  which  there  is  aflixed  or  attached  a  statement 
or  mark  to  express  the  quantity  or  quality  thereof,  or  the 


895  RIGHTS   AND    OBLIGATIONS    OP    SELLER.        §§  1774-1778 

place  where  it  was,  in  whole  or  in  part,  produced,  manu- 
factured, or  prepared,  thereby  warrants  the  truth  thereof. 
En.  March  21,  1872. 

Owner  of  trade-mark:     Pol.  Code,  sec.  3199. 

§  1774.  Warranty  on  sale  of  written  instrument.  One 
who  sells  or  agrees  to  sell  an  instrument  purporting  to 
bind  any  one  to  the  performance  of  an  act,  thereby  war- 
rants that  he  has  no  knowledge  of  any  facts  which  tend 
to  prove  it  worthless,  such  as  the  insolvency  of  any  of  the 
parties  thereto,  where  that  is  material,  the  extinction  of 
its  obligations,  or  its  invalidity  for  any  cause.  En.  March 
21,  1872.     Am'd.  1873-4,  244. 

Cal.Rep.Cit.      86,188;      92,124;      92,127;      92,128;      96,161; 
103,  324. 

§  1775.  Warranty  of  provisions  for  domestic  use.  One 
who  makes  a  business  of  selling  provisions  for  domestic 
use  warrants  by  a  sale  thereof,  to  one  who  buys  for  actual 
consumption,  that  they  are  sound  and  wholesome.  En. 
March  21,  1872. 

§  1776.  Warranty  on  sale  of  good-will.  One  who  sells 
the  good-will  of  a  business,  thereby  warrants  that  he  will 
not  endeavor  to  draw  off  any  of  the  customers.  En.  March 
21,   1872. 

Cal.Rep.Cit.  71,  148  ;   114,  665  ;   124,  432. 

§  1777.  Warranty  upon  judicial  sale.  Upon  a  judicial 
sale,  the  only  warranty  implied  is  that  the  seller  does 
not  know  that  the  sale  will  not  pass  a  good  title  to  the 
property.     En.  March  21,  1872. 

Cal.Rep.Cit.   120,   424. 

§  1778.  Effect  of  general  warranty.  A  general  warranty 
does  not  extend  to  defects  inconsistent  therewith  of  which 
the  buyer  was  then  aware,  or  which  were  then  easily 
discernible  by  him  without  the  exercise  of  peculiar  skill; 
but  it  extends  to  all  other  defects.    En.  March  21,  1872. 


S§  1784-1792        RIGHTS   OF   BUYER— SALE   BY  AUCTION.  89« 

CHAPTER    III. 
RIGHTS    AND    OBLIGATIONS    OF    THE    BUYER. 

5  1784.  Price,  when  to  be  paid. 
§  1785.  Right  to  inspect  goods. 
"I  1786.     Rights  in  case  of  breach  of  warranty. 

§  1784.  Price,  when  to  be  paid.  A  buyer  must  pay  the 
price  of  the  thing  sold  on  its  delivery,  and  must  take  it 
away  within  a  reasonable  time  after  the  seller  offers  to 
deliver  it.    En.  March  21,  1872. 

Cal.Rep.Cit.   76,   215  ;   82,  479. 

When  seller  must  act  as  bailee:    See   ante,  sec.  1748. 

§  1785.  Right  to  inspect  goods.  On  an  agreement  for 
sale,  with  warranty,  the  buyer  has  a  right  to  inspect  the 
thing  sold,  at  a  reasonable  time,  before  accepting  it;  and 
may  rescind  the  contract  if  the  seller  refuses  to  permit 
him  to  do  so.  En.  March  21,  1872. 

Rescission  of  contract  by  seller:    See   ante,  sec.  1749. 

Rescission  by  buyer  for  breach  of  warranty:  See  next 
section. 

§  1786.  Rights  in  case  of  breach  of  warranty.  The 
breach  of  a  warranty  entitles  the  buyer  to  rescind  an 
agreement  for  sale,  but  not  an  executed  sale,  unless  the 
warranty  was  intended  by  the  parties  to  operate  as  a 
condition.     En.  March  21,  1872. 

Cal.Rep.Cit.  96,   92. 

CHAPTER    IV. 

.     SALE    BY    AUCTION. 

§  1792.  Sale  by  auction,  what. 

§  1793.  Sale,  when  complete. 

§  1794.  Withdrawal  of  bid. 

§  1795.  Sale  under  written  conditions. 

§  1796.  Rights  of  buyer  upon  sale  without  reserve. 

§   1797.  By  bidding. 

§  1798.  Auctioneer's  memorandum  of  sale. 

§  1792.  Sale  by  auction,  what.  A  sale  by  auction  is  a 
sale  by  public  outcry  to  the  highest  bidder  on  the  spot.  En. 
March  21,  1872. 

Auctioneers,    authority    of,    generally:     See    sees.    2362, 


397  SALE    BY    AUCTION.  §§  1793-1798 

2363.     See   regulations    in    Pol.    Code,    sees.    3284    et    seq., 
respecting  auctioneers'  bonds,  license,  etc. 

§  1793.  Sale,  when  complete.  A  sale  by  auction  is  com- 
plete when  the  auctioneer  publicly  announces,  by  tne  fall 
of  his  hammer,  or  in  any  other  customary  manner,  tnat  the 
thing  is  sold.     En.  March  21,  1872. 

§  1794.  Withdrawal  of  bid.  Until  the  announcement 
mentioned  in  the  last  section  has  been  made,  any  bidder 
may  withdraw  his  bid,  if  he  does  so  in  a  manner  reason- 
ably sufficient  to  bring  it  to  the  notice  of  the  auctioneer. 
En.  March  21,  1872. 

§  1795.  Sale  under  written  conditions.  When  a  sale  by 
auction  is  made  upon  written  or  printed  conditions,  such 
conditions  cannot  be  modified  by  any  oral  declaration  of  the 
auctioneer,  except  so  far  as  they  are  for  his  own  benefit. 
En.  March  21,  1872. 

§  1796.  Rights  of  buyer  upon  sale  without  reserve. 
If,  at  a  sale  by  auction,  the  auctioneer,  having  authority 
to  do  so,  publicly  announces  that  the  sale  will  be  without 
reserve,  or  makes  any  announcement  equivalent  thereto, 
the  highest  bidder  in  good  faith  has  an  absolute  right  to 
the  completion  of  the  sale  to  him;  and,  upon  such  a  sale, 
bids  by  the  seller,  or  any  agent  for  him,  are  void.  En. 
March  21,  1872. 

§  1797.  By  bidding.  The  employment  by  a  seller  of 
any  person  to  bid  at  a  sale  by  auction,  without  the  knowl- 
edge of  the  buyer,  without  an  intention  on  the  part  of 
such  bidder  to  buy,  and  on  the  part  of  the  seller  to  enforce 
his  bid,  is  a  fraud  upon  the  buyer  which  entitles  him  to 
rescind  his  purchase.     En.  March  21,  1872. 

§  1798.  Auctioneer's  memorandum  of  sale.  When  prop- 
erty is  sold  by  auction,  an  entry  made  by  the  auctioneer, 
in  his  sale-book,  at  the  time  of  the  sale,  specifying  the 
name  of  the  person  for  whom  he  sells,  the  thing  sold,  the 
price,  the  terms  of  sale,  and  the  name  of  the  buyer,  binds 
both  the  parties  in  the  same  manner  as  if  made  by  them- 
selves.    En.  March  21,  1872.     Am'd.  1873-4,  244. 

Auctioneer  agent  to  make  memorandum:  See  ante, 
sec.  1624,  subd.  4. 


§§  18U-i-lS07  EXCHANGE-DEPOSIT.  398 

TITLE    11. 

EXCHANGE. 

§  1804.  Exchange,  what. 

§  1805.  Form  of  contract. 

§  1806.  Parties  have  rights  and  obligations  of  sellers   and  buyers. 

§  1807.  Warranty  of  money. 

§  1804.  Exchange,  what.  Exchange  is  a  contract  by 
which  the  parties  mutually  give,  or  agree  to  give,  one 
thing  for  another,  neither  thing,  or  both  things,  being 
money  only.     En.  March  21,  1872. 

Cal.Rep.Cit.   71,   292. 

§  1805.  Form  of  contract.  The  provisions  of  section 
1739  apply  to  all  exchanges  in  which  the  value  of  the  thing 
to  be  given  by  either  party  is  two  hundred  dollars  or 
more.    En.  March  21,  1872. 

§  1806.  Parties  have  rights  and  obligations  of  sellers 
and  buyers.  The  provisions  of  the  title  on  sale  apply  to 
exchanges.  Each  party  has  the  rights  and  obligations  of 
a  seller  as  to  the  thing  which  he  gives,  and  of  a  buyer 
as  to  that  which  he  takes.    En,  March  21,  1872. 

Cal.Rep.Cit.   71,  293  ;   74,  379. 

§  1807.  Warranty  of  money.  On  an  exchange  of  money, 
each  party  thereby  warrants  the  genuineness  of  the  money 
given  by  him.     En.  March  21,  1872. 

TITLE    III. 

DEPOSIT. 

Chapter  I.     Deposit  in  General,   §§  1813-1827. 
II.     Deposit  for  Keeping,  §§  1833-1872. 
III.    Deposit  for  Exchange,  §  1878. 


399  DEPOSIT     IN     GENERAL.  5§  1813-1815 

CHAPTER    I. 

DEPOSIT    IN    GENERAL. 

Article  I.      Nature  and  Creation  of  Deposit,   §§  1813-1818. 
II.     Obligations  of  the  Depositary,  §§  1822-1827. 

ARTICLE    I. 
NATURE    AND    CREATION    OF    DEPOSIT. 

§  1813.  Deposit,  kinds  of. 

§  1814.  Voluntary  deposit,  how  made. 

§   1815.  Involuntary  deposit,  how  made. 

§  1816.  Duty  of  involuntary  depositary. 

§  1817.  Deposit  for  keeping,  what. 

§   1818.  Deposit  for  exchange,   what. 

§  1813.  Deposit,  kinds  of.  A  deposit  may  be  voluntary 
or  involuntary;  and  for  safe-keeping  or  for  exchange.  En. 
March  21,  1872. 

Deposit  for  keeping:    Post,  sees.  1833  et  seq. 

Gratuitous  deposit,  and  incidents:  Post,  sees.  1844  et 
seq. 

Deposit  for  hire:    Post,  sees.  1851  et  seq. 

Deposit  for  exchange:    Post,  sec.  1878. 

Loan  for  use:  Sees.  1884  et  seq;  loan  for  exchange: 
Sec.  1902;  loan  of  money:    Sec.  1912. 

Hiring:     See    post,  sees.  1925  et  seq. 

Innkeepers:    Post,  sees.  1859  et  seq. 

Common  carriers:    Sees.  2085  et  seq. 

Pledge:    Post,  sees.  2986  et  seq. 

§  1814.  Voluntary  deposit,  how  made.  A  voluntary 
deposit  is  made  by  one  giving  to  another,  with  his  consent, 
the  possession  of  personal  property  to  keep  for  the  benefit 
of  the  former,  or  of  a  third  party.  The  person  giving  is 
called  the  depositor,  and  the  person  receiving  the  de- 
positary.    En.  March  21,  1872. 

Finder  of  lost  articles:    See    post,  sees.  18C4  et  seq. 

Obligations  of  the  depositary:    See  sees.  1822  et  seq. 

§  1815.  Involuntary  deposit,  how  made.  An  involuntary 
deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  personal 
property  in  the  possession  of  any  person,  without  negli- 
gence on  the  part  of  its  owner;  or, 


§§  1816-1S22  DEPOSIT    IN    GENERAL.  400 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection, 
riot  or  like  extraordinary  emergencies,  by  the  owner  of 
personal  property  committing  it,  out  of  necessity,  to  the 
care  of  any  person.     En.  March  21,  1872. 

Cal.Rep.Cit.   58,   122. 

Involuntary  deposit  in  cases  of  emergency  must  be  ac- 
cepted:   See  next  section. 

Involuntary  deposit  is  gratuitous:    See    post,  sec.  1845. 
Degree  of  care  requisite:     See    post,  sec.  1846. 
Duties  of  depositary,  when  cease:    See   post,  sec.  1847. 

§  1816.  Duty  of  involuntary  depositary.  The  person 
with  whom  a  thing  is  deposited  in  the  manner  described 
in  the  last  section  is  bound  to  take  charge  of  it,  if  able  to 
do  so.     En.  March  21,  1872. 

§  1817.  Deposit  for  keeping,  what.  A  deposit  for  keep- 
ing is  one  in  which  the  depositary  is  bound  to  return 
the  identical  thing  deposited.     En.  March  21,  1872. 

Deposit  for  keeping:    See   post,  sees.  1833  et  seq. 

§  1818.  Deposit  for  exchange,  what.  A  deposit  for  ex- 
change is  one  in  which  the  depositary  is  only  bound  to 
return  a  thing  corresponding  in  kind  to  that  which  is 
deposited.    En.  March  21,  1872. 

Deposit  for  exchange  transfers  title:     Post,  sec.  1878. 

Loan  for  exchange:    See   post,  sees.  1902  et  seq. 


ARTICLE    II. 

OBLIGATIONS    OF    THE    DEPOSITARY. 

§  1822.  Depositary  must  deliver  on   demand. 

§  1823.  No  obligation  to  deliver  without  demand. 

§  1824.  Place  of  delivery. 

§  1825.  Notice  to  owner  of  adverse  claim. 

§  1826.  Notice  to  owner  of  thing  wrongfully  detained. 

§  1827.  Delivery  of  thing  owned  jointly,  etc. 

§  1822.  Depositary  must  deliver  on  demand.  A  de- 
positary must  deliver  the  thing  to  the  person  for  whose 
benefit  it  was  deposited,  on  demand,  whether  the  deposit 
was  made  for  a  specified  time  or  not,  unless  he  has  a 
lien  upon  the  thing  deposited,  or  has  been  forbidden  or 
nrevented  from   doing   so   by  the   real   owner   thereof,   or 


"401  DEPOSIT     IN     GENERAL.  §§1S23-1JC7 

by  the  act  of  the  law,  and  has  given  the  notice  required  by 
section  1825.     En.  March  21,  1872. 

Cal.Rep.Cit.   93,   2S7  ;    113,  102. 

See    post,  sees.  1823,  1826. 

Care  required  of  depositary:    See    post,  sec.  1852. 

Depositary's  lien:  Consult  section  3051  for  a  general 
lien  upon  personalty  dependent  on  possession. 

Notice  of  adverse  proceedings:     Post,  sec.  1825. 

Lien  of  innkeepers:    See  sees.  1861  et  seq. 

§  1823.     No    obligation    to    deliver    without    demand.     A 

depositary  is  not  bound  to  deliver  a  thing  deposited  without 
demand,  even  where  the  deposit  is  made  for  a  specified 
time.     En.  March  21,  1872. 
Cal.Rep.Cit.   113,   102. 

§  1824.  Place  of  delivery.  A  depositary  must  deliver 
the  thing  deposited  at  his  residence  or  place  of  business, 
as  may  be  most  convenient  for  him.    En.  March  21,  1872. 

Cal.Rep.Cit.   58,   122. 

Delivery  in  sales:     See  sees.  1753  et  seq. 

§  1825.  Notice  to  owner  of  adverse  claim.  A  depositary 
must  give  prompt  notice  to  the  person  for  whose  benefit 
the  deposit  was  made,  of  any  proceedings  taken  adversely 
to  his  interest  in  the  thing  deposited,  which  may  tend  to 
excuse  the  depositary  from  delivering  the  thing  to"  him. 
En.   March   21,   1872. 

Cal.Rep.Cit.   93,   287. 

§  1826.  Notice  to  owner  of  thing  wrongfully  detained. 
A  depositary,  who  believes  that  a  thing  deposited  with 
iiim  is  wrongfully  detained  from  its  true  owner,  may  give 
him  notice  of  the  deposit;  and  if  within  a  reasonable 
time  afterward  he  does  not  claim  it,  and  sufficiently  estab- 
lish his  right  thereto,  and  indemnify  the  depositary  against 
the  claim  of  the  depositor,  the  depositary  is  exonerated 
from  liability  to  the  person  to  whom  he  gave  the  notice, 
upon  returning  the  thing  to  the  depositor,  or  assuming,  in 
good  faith,  a  new  obligation  changing  his  position  in  re- 
spect to  the  thing,  to  his  prejudice.    En.  March  21,  1872. 

§  1827.  Delivery  of  thing  owned  jointly,  etc.  If  a  thing 
deposited  is  owned  jointly  or  in  common  by  persons  who 


$§  1833-1835  DEPOSIT    FOR    KEEPING.  402 

cannot  agree  upon  the  manner  of  its  delivery,  the  de- 
positary may  deliver  to  each  his  proper  share  thereof,  if 
it  can  be  done  without  injury  to  the  thing.  En.  March  21, 
1872. 


CHAPTER    11. 

DEPOSIT    FOR    KEEPING. 

Article  I.  General  Provisions,  §§  1833-1840. 

II.  Gratuitous  Deposit,  §§  18-14-1847. 

III.  Storage,   §§  1851-1857. 

IV.  Innkeepers,  §§  1859-1863. 
V.  Finding,  §§  1864-1872. 


ARTICLE    I. 

GENERAL   PROVISIONS, 

§  1833.  Depositor  must  indemnify  depositary. 

§   1834.  Obligation  of  depositary  of  animals. 

§   1835.  Obligations  as  to  use  of  thing  deposited. 

§  1836.  Liability  for  damage  arising  from  wrongful  use. 

§   1837.  Sale  of  thing  in  danger  of  perishing. 

§   1838.  Injury  to,  or  loss  of  thing  deposited. 

§   1839.  Service  rendered  by  depositary. 

§   1840.  Extent  of  his  liability  for  negligence. 

§1833.  Depositor  must  indemnify  depositary.  A  de- 
positor must  indemnify  the  depositary: 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices 
of  the  thing  deposited;   and, 

2.  For  all  expenses  necessarily  incurred  by  him  about 
the  thing,  other  than  such  as  are  involved  in  the  nature 
of  the  undertaking.     En.  March  21,  1872. 

Lender's  liability  for  defects  of  articles  borrowed:  See 
sec.  1894. 

§  1834.  Obligation  of  depositary  of  animals.  A  de- 
positary of  living  animals  must  provide  them  with  suitable 
food  and  shelter,  and  treat  them  kindly.  En.  March  21, 
1872. 

Lien  on  keepers  of  livestock:     See    post,  sec.  3051. 

§  1835.     Obligations    as    to    use    of    thing    deposited.     A 

depositary  may  not  use  the  thing  deposited,  or  permit  it 
to  be  used,  for  any  purpose,  without  the  consent  of  the 
depositor.     He  may  not,  if  it  is  purposely  fastened  by  the 


403  DEPOSIT    FOR    KEEPING.  §§  1S36-1840 

depositor,  open  it  without  the  consent  of  the  latter,  except 
in  case  of  necessity.     En.  March  21,  1872. 

Cal.Rep.Cit.   94,  350  ;   112,  601. 

See  next  section. 

Hiring:    See   post,  sees.  1925  et  seq. 

§  1836.  Liability  for  damage  arising  from  wrongful  use. 
A  depositary  is  liable  for  any  damage  happening  to  the 
thing  deposited,  during  his  wrongful  use  thereof,  unless 
such  damage  must  inevitably  have  happened  though  the 
property  had  not  been  thus  used.     En.  March  21,  1872. 

§  1837.  Sale  of  thing  in  danger  of  perishing.  If  a  thing 
deposited  is  in  actual  danger  of  perishing  before  instruc- 
tions can  be  obtained  from  the  depositor,  the  depositary 
may  sell  it  for  the  best  price  obtainable,  and  retain  the 
proceeds  as  a  deposit,  giving  immediate  notice  of  his 
proceedings  to  the  depositor.     En.  March  21,  1872. 

§  1838.  injury  to,  or  loss  of  thing  deposited.  If  a  thing 
is  lost  or  injured  during  its  deposit,  and  the  depositary 
refuses  to  inform  the  depositor  of  the  circumstances  under 
which  the  loss  or  injury  occurred,  so  far  as  he  has  infor- 
mation concerning  them,  or  willfully  misrepresents  the 
circumstances  to  him,  the  depositary  is  presumed  to  have 
willfully,  or  by  gross  negligence,  permitted  the  loss  or 
injury  to  occur.     En.  March  21,  1872. 

Cal.Rep.Cit.  53,   736. 

§  1839.  Service  rendered  by  depositary.  So  far  as  any 
service  is  rendered  by  a  depositary,  or  required  from  him, 
his  duties  and  liabilities  are  prescribed  by  the  title  on 
employment  and  service.     En.  March  21,  1872. 

See    post,  sees.  1965  et  seq. 

§  1840.     Extent    of    his    liability    for    negligence.      The 

liability  of  a  depositary  for  negligence  cannot  exceed  the 
amount   which   he   is   informed    by   the    depositor,    or   has 
reason  to  suppose,  the  thing  deposited  to  be  worth.     En. 
March  21,  1872.     Am'd.  1873-4,  244. 
Cal.Rep.Cit.  133,   538. 


§§  1844-1847  DEPOSIT    FOR    KEEPING.  404 

ARTICLE    II. 

GRATUITOUS    DEPOSIT. 

5  1844.     Gratuitous  deposit,  what. 

§   1845.      Nature   of   involuntary   deposit. 

§   1846.      Degree  of  care  required  of  gratuitous  depositary. 

S  1847.      His  duties  cease,  when. 

Gen.  Cit.  to  Art.— Cal.  Rep.  Cit.  103,   379  ;   116,   414. 

§  1844.  Gratuitous  deposit,  what.  Gratuitous  deposit  is 
a  deposit  for  wliicti  tlie  depositary  receives  no  considera- 
tion beyond  the  mere  possession  of  the  thing  deposited. 
En.   March   21,   1872. 

Cal. Rep. Cit.   103,  379  ;   116,  414. 

Degree  of  care  necessary:  See  next  section.  If  this 
bailment  correspond  to  the  mandatum  as  generally  under- 
stood, requiring  on  the  part  of  the  bailee  some  service  to 
be  performed  v^^ith  respect  to  the  deposit,  then  sections 
1839,  supra,  and  sections  1975,  1976,  1977,  post,  must  be 
read  together  with  section  1846,  in  determining  the  degree 
of  care  which  this  bailee  must  use. 

§  1845.  Nature  of  involuntary  deposit.  An  involuntary 
deposit  is  gratuitous,  the  depositary  being  entitled  to  no 
reward.    En.  March  21,  1872. 

Involuntary  deposit  defined:     See    ante,  sec.  1815. 

§  1846.  Degree  of  care  required  of  gratuitous  depositary. 
A  gratuitous  depositary  must  use,  at  least,  slight  care  for 
the  preservation  of  the  thing  deposited.  En.  March  21, 
1872. 

Degree  of  care  requisite:    See  note  to  sec.  1844,  supra. 

§  1847.  His  duties  cease,  when.  The  duties  of  a  gratu- 
itous depositary  cease: 

1.  Upon  his  restoring  the  thing  deposited  to  its  owner; 
or, 

2.  Upon  his  giving  reasonable  notice  to  the  owner  to 
remove  it,  and  the  owner  failing  to  do  so  within  a  reason- 
able time.  But  an  involuntary  depositary,  under  sub- 
division 2  of  section  1815,  cannot  give  such  notice  until 
the  emergency  which  gave  rise  to  the  deposit  is  past. 
En.   March   21,   1872. 


405  DEPOSIT    FOR    KEEPING.  §§  1851-1854 

ARTICLE    III. 
STORAGE. 

§  1851.  Deposit  for  hire. 

§   1852.  Degree  of  care  required  of  depositary  for  hire. 

§  1853.  Rate  of  compensation  for  fraction  of  a  week,  etc. 

§   1854.  Termination  of  deposit. 

§   1855.  Same. 

§   1856.  Lien  for  storage  charges. 

§  1857.  Storage  property  to  be  sold. 

§  1851.  Deposit  for  hire.  A  deposit  not  gratuitous  is 
called  storage.  The  depositary  in  such  case  is  called  a 
depositary  for  hire.     En.  March  21,  1872. 

Cal.Rep.Cit.   120,   59S. 

Receipts  of  warehousemen  and  wharfingers,  act  in 
relation  to:  See  post.  Appendix,  title  Warehouses  and 
Wharfingers. 

Hiring  in  general:    See   post,  sec.  1925. 

§  1852.     Degree  of  care   required  of  depositary  for  iiire. 

A  depositary  for  hire  must  use  at  least  ordinary  care 
for  the  preservation  of  the  thing  deposited.  En.  March  21, 
1872. 

Cal.Rep.Cit.   56,  486;   113,  104;    120,  598. 

Liability  of  innkeepers:     See  sec.  1859. 

Common  carriers:    Sees.  2100,  2114,  2194. 

Liability  of  warehouseman:    See   post,  sees.  2120,  2121. 

§  1853.     Rate  of  compensation  for  fraction  of  a  weel<,  etc. 

In  the  absence  c^  a  different  agreement  or  usage,  a  de- 
positary for  hire  is  entitled  to  one  week's  hire  for  the 
sustenance  and  shelter  of  living  animals  during  any 
fraction  of  a  week,  and  to  half  a  month's  hire  for  the 
storage  of  any  other  property  during  any  fraction  of  a 
half  month.     En.  March  21,  1872. 

Warehouseman  making  advances  may  sell  property 
when:      See  Pol.  Code,  sec.  3156. 

§  1854.  Termination  of  deposit.  In  the  absence  of  an 
agreement  as  to  the  length  of  time  during  which  a  deposit 
is  to  continue,  it  may  be  terminated  by  the  depositor  at  any 
time,  and  by  the  depositary  upon  reasonable  notice.  En. 
March  21.  1872. 


§§  1855-1S59  DEPOSIT    FOR    KEEPING.  406 

§  1855.  Same.  Notwithstanding  an  agreement  respect- 
ing the  length  of  time  during  which  a  deposit  is  to  continue, 
it  may  be  terminated  by  the  depositor  on  paying  all  that 
would  become  due  to  the  depositary  in  case  of  the  deposit 
so  continuing.     En.  March  21,  1872. 

§  1856.  Lien  for  storage  charges.  A  depositary  for  hire 
has  a  lien  for  storage  charges,  which  is  regulated  by  the 
title  on  liens.     En.  Stats.  1891,  470. 

Cal.Rep.Cit.   125,   599. 

§  1857.  Storage  property  to  be  sold.  If,  from  any  cause 
other  than  want  of  ordinary  care  and  diligence  on  his 
part,  a  depositary  for  hire  is  unable  to  deliver  perishable 
property,  baggage,  or  luggage  received  by  him  for  storage, 
or  to  collect  his  charges  for  storage  due  thereon,  he  may 
cause  such  property  to  be  sold,  in  open  market,  to  satisfy 
his  lien  for  storage;  provided,  that  no  property  except 
perishable  property  shall  be  sold,  under  the  provisions  of 
this  section,  upon  which  storage  charges  shall  not  be  due 
and  unpaid  for  one  year  at  the  time  of  such  sale.  En. 
Stats.  1891,  470. 

Cal.Rep.Cit.   125,   599. 


ARTICLE    rV. 

INNKEEPERS. 

§  1859.  Innkeeper's  liability. 

§  1860.  How  exempted  from  liability. 

§   1861.  Lien   of  boarding   and   lodging-house   keepers. 

§  1862.  Unclaimed  baggage  may  be  sold  at  auction.     Notice, 

§  1863.  Keeper  to  post  rates  of  charges. 

§  1859.  Innkeeper's  liability.  The  liability  of  an  inn- 
keeper, hotel-keeper,  boarding  and  lodging-house  keeper, 
for  losses  of  or  injuries  to  personal  property,  other  than 
money  placed  by  his  guests,  boarders,  or  lodgers  under 
his  care,  is  that  of  a  depositary  for  hire;  provided,  however, 
that  in  no  case  shall  such  liability  exceed  the  sum  of 
one  hundred  dollars  for  each  trunk  and  its  contents,  fifty 
dollars  for  each  valise  or  traveling  bag  and  contents,  and 
ten  dollars  for  each  box,  bundle,  or  package  and  contents, 
so  placed  under  his  care,  unless  he  shall  have  consented 


i07  DEPOSIT    FOR    KEEPING.  §§  1SG0-18G2 

in  writing  with   the  owner  thereof   to  assume  a  greater 

liability.     En.  March  21,  1872.     Am'd.  1895,  50. 

Cal.Rep.Cit.     87.  485;      93,  261;     93,  262.      Subd.  5  —  96,  492; 
96,   493. 

See  next  section. 

Refusing  to  receive  and  entertain  guests  a  misdemeanor: 
Pen.  Code,  sec.  365. 
Cubic  air  law:    See  post.  Appendix,  title  Lodging-houses. 

§  1860.  How  exempted  from  liability.  If  an  innkeeper, 
hotel-keeper,  boarding-house  or  lodging-house  keeper,  keeps 
a  fireproof  safe,  and  gives  notice  to  a  guest,  boarder,  or 
lodger,  either  personally  or  by  putting  up  a  printed  notice 
in  a  prominent  place  in  the  office  or  the  room  occupied 
by  the  guest,  boarder,  or  lodger,  that  he  keeps  such  a  safe 
and  will  not  be  liable  for  money,  jewelry,  documents,  or 
other  articles  of  unusual  value  and  small  compass,  unless 
placed  therein,  he  is  not  liable,  except  so  far  as  his  own 
acts  shall  contribute  thereto,  for  any  loss  of  or  injury  to 
such  articles,  if  not  deposited  with  him  to  be  placed 
therein,  nor  in  any  case  more  than  the  sum  of  two  hundred 
and  fifty  dollars  for  any  or  all  such  property  of  any  indi- 
vidual guest,  boarder,  or  lodger,  unless  he  shall  have  given 
a  receipt  in  writing  therefor  to  such  guest,  boarder,  or 
lodger.    En.  March  21,  1872.     Am'd.  1895,  50. 

§  1861.  Lien  of  boarding  and  lodging-house  keepers. 
Hotel  men,  boarding-house  and  lodging-house  keepers, 
shall  have  a  lien  upon  the  baggage  and  other  property  of 
value  of  their  guests,  or  boarders,  or  lodgers,  brought 
into  such  hotel,  inn,  or  boarding  or  lodging-house  by  such 
guests,  or  boarders,  or  lodgers,  for  the  proper  charges  due 
from  such  guests,-  or  boarders,  or  lodgers,  for  their  accom- 
modation, board  and  lodging,  and  room  rent,  [and]  such 
extras  as  are  furnished  at  their  request,  with  the  right  to 
the  possession  of  such  baggage,  or  other  property  of  value, 
until  all  such  charges  are  paid.    En.  Stats.  1875-6,  78. 

Obtaining  accommodations  with  intent  to  defraud:  See 
Pen.  Code,  sec.  537. 

§  1862.  Unclaimed  baggage  may  be  sold  at  auction. 
Notice.  Whenever  any  trunk,  carpet  bag,  valise,  box, 
bundle,   or   other   baggage   has   heretofore   come,   or   shall 


51863  DEPOSIT    FOR    KEEPING.  408 

hereafter  come,  into  the  possession  of  the  keeper  of  any 
hotel,  inn,  boarding  or  lodging-house,  as  such,  and  has 
remained,  or  shall  remain,  unclaimed  for  the  period  of  six 
months,  such  keeper  may  proceed  to  sell  the  same  at  public 
auction,  and  out  of  the  proceeds  of  such  sale  may  retain 
the  charges  for  storage,  if  any,  and  the  expenses  of  adver- 
tising and  sale  thereof;  but  no  such  sale  shall  be  made 
until  the  expiration  of  four  weeks  from  the  first  publication 
of  notice  of  such  sale  in  a  newspaper  published  in  or 
nearest  the  city,  town,  village,  or  place  in  which  said 
hotel,  inn,  boarding  or  lodging-house  is  situated.  Said 
notice  shall  be  published  once  a  week,  for  four  successive 
weeks,  in  some  newspaper,  daily  or  weekly,  of  general 
circulation,  and  sliall  contain  a  description  of  each  trunk, 
carpet  bag,  valise,  box,  bundle,  or  other  baggage,  as  near 
as  may  be;  the  name  of  the  owner,  if  known;  the  name  of 
such  keeper,  and  the  time  and  place  of  sale;  and  the 
expenses  incurred  for  advertising  shall  be  a  lien  upon  such 
trunk,  carpet  bag,  valise,  box,  bundle,  or  other  baggage, 
in  a  ratable  proportion,  according  to  the  value  of  such 
piece  of  property,  or  thing,  or  article  sold;  and  in  case 
any  balance  arising  from  such  sale  shall  not  be  claimed 
by  the  rightful  owner  within  one  week  from  the  day  of  said 
sale,  the  same  shall  be  paid  into  the  treasury  of  the  county 
in  which  such  sale  took  place;  and  if  the  same  be  not 
claimed  by  the  owner  thereof,  or  his  legal  representatives, 
within  one  year  thereafter,  the  same  shall  be  paid  into  the 
general  fund  of  said  county.     En.  Stats.  1875-G,  78. 

§  1863.  Keeper  to  post  rates  of  charges.  Every  keeper 
of  a  hotel,  inn,  boarding  or  lodging-house,  shall  post,  in 
[a]  conspicuous  place,  in  the  oflBce,  or  public  room,  and  in 
every  bedroom  of  said  hotel,  boarding-house,  inn,  or  lodg- 
ing-house, a  printed  copy  of  this  section,  and  a  statement 
of  charge,  or  rate  of  charges,  by  the  day,  and  for  meals 
or  items  furnished,  and  for  lodging.  No  charge  or  sum 
shall  be  collected  or  received  by  any  such  person  for  any 
service  not  actually  rendered,  or  for  any  item  not  actually 
delivered,  or  for  any  greater  or  other  sum  than  he  is 
entitled  to  by  the  general  rules  and  regulations  of  said 
hotel,  inn,  boarding  or  lodging-house.  For  any  violation 
of   this    section   or   any    provision    herein    contained,    the 


409  DEPOSIT    FOR    KEEPING.  §§  1S64-1867 

offender  shall  forfeit  to  the  injured  party  three  times  the 
amount  of  the  sum  charged  in  excess  of  what  he  is  entitled 
to.    En.  Slats.  1875-6,  79. 

.       ARTICLE    V. 

FINDING. 

§  1864.  Obligation  of  finder. 

§  1S65.  Finder  to  notify  owner. 

§  1866.  Claimant  to  prove  ownership. 

§  1867.  Reward,  etc.,  to  finder. 

§  1868.  Finder  may  put  thing  found  on  storage. 

§  1869.  When  finder  may  sell  the  thing  found. 

§  1870.  How  sale  is  to  be  made. 

§  1871.  Surrender  of  thing  to  the  finder. 

I  1872.  Thing  abandoned. 

§  1864.  Obligation  of  finder.  One  who  finds  a  thing  I6^t 
is  not  bound  to  take  charge  of  it,  but  if  he  does  so  he  is 
thenceforward  a  depositary  for  the  owner,  with  the  rights 
and  obligations  of  a  depositary  for  hire.  En.  March  21, 
1872. 

Lost  money  and  goods:    See  Pol.  Code,  sees.  3136-3142. 

Depositary  for  hire:    See    ante,  sees.  1851  et  seq. 

§  1865.  Finder  to  notify  owner.  If  the  finder  of  a  thing 
knows  or  suspects  who  is  the  owner,  he  must,  with  reason- 
able diligence,  give  him  notice  of  the  finding;  and  if  he 
fails  to  do  so,  he  is  liable  in  damages  to  the  owner,  and 
has  no  claim  to  any  reward  offered  by  him  for  the  recovery 
of  the  thing,  or  to  any  compensation  for  his  trouble  or 
expenses.     En.  March  21,  1872. 

If  owner  is  not  known  finder  must  report  to  justice 
of  the  peace  and  advertise.  If  he  fails  to  do  so  he  forfeits 
double  the  value  thereof  to  the  owner:  Pol.  Code,  sees. 
3136-3142. 

Finder,  when  guilty  of  larceny:    See  Pen.  Code,  sec.  485. 

§  1866.  Claimant  to  prove  ownership.  The  finder  of  a 
thing  may,  in  good  faith,  before  giving  it  up,  require 
reasonable  proof  of  ownership  from  any  person  claiming 
it.     En.  March  21,  1872. 

§  1867.     Reward,  etc.,  to  finder.     The  finder  of  a  thing  is 
entitled  to  compensation  for  all  expenses  necessarily  in- 
curred by  him  in  its  preservation  and  for  any  other  service 
Civ.  Code— 18 


S3  1868-1872  DEPOSIT    FOR    KEEPING.  410 

necessarily  performed  by  him  about  it,  and  to  a  reasonable 
reward  for  keeping  it.     En.  Mai-ch  21,  1872. 

§  1868.  Finder  may  put  thing  found  on  storage.  The 
finder  of  a  thing  may  exonerate  himself  from  lialjility  at 
any  time  by  placing  it  on  storage  with  any  responsible 
person  of  good  character,  at  a  reasonable  expense.  En. 
March  21,  1872. 

§1869.  Wlien  finder  may  sell  the  thing  found.  The 
finder  of  a  thing  may  sell  it,  if  it  is  a  thing  which  is 
commonly  the  subject  of  sale,  when  the  owner  cannot, 
with  reasonable  diligence,  be  found,  or  being  found,  refuses, 
upon  demand,  to  pay  the  lawful  charges  of  the  finder,  in 
IJbi/9  following  cases: 

i^^•l.  When  the  thing  is  in  danger  of  perishing,  or  of  losing 
the  greater  part  of  its  value;   or, 

2.  When  the  lawful  charges  of  the  finder  amount  to 
two  thirds  of  its  value.    En.  March  21,  1872. 

Lost  money  and  goods:    See  Pol.  Code,  sees.  3136-3142. 

§  1870.  How  sale  is  to  be  made.  A  sale  under  the  pro- 
visions of  the  last  section  must  be  made  in  the  same 
manner  a^  the  sale  of  a  thing  pledged.    En.  March  21,  1872. 

Cal.Rep.Cit.   136,  181. 

Sale  of  pledge:     See    post,  sees.  3000  et  seq. 

§  1871.  Surrender  of  thing  to  the  finder.  The  owner  of 
a  thing  found  may  exonerate  himself  from  the  claims  of 
the  finder  by  surrendering  it  to  him  in  satisfaction  thereof. 
En.  March  21,  1872.    . 

§  1872.  Thing  abandoned.  The  provisions  of  this  article 
have  no  application  to  things  which  have  been  intentionally 
abandoned  by  their  owners.    En.  March  21,  1872. 

Cal.Rep.Cit.  115.  590 ;   115.  592. 


411 


LOAN    FOR    USE. 


§§ 1878-1885 


CHAPTER    III. 

DEPOSIT    FOR    EXCHANGE. 

§  1878.     Relations  of  the  parties. 

§  1878.  Relations  of  the  parties.  A  deposit  for  exchange 
transfers  to  the  depositary,  the  title  to  the  thing  deposited, 
and  creates  between  him  and  the  depositor  the  relation 
of  debtor  and  creditor  merely.    En.  March  21,  1872. 

Deposit  for  exchange  defined:    Ante,  sec.  1818. 

Loan  for  exchange:    See    post,  sec.  1902. 


TITLE    lY. 

LOAN. 

Chapter  I,    Loan  for  Use,  §§  1884-1896. 

II.     Loan  for  Exchange,   §§  1902-1906. 
in.    Loan  of  Money,  §§  1912-1920. 


CHAPTER    I. 
LOAN    FOR    USE. 

Loan,  what. 

Title  to  property  lent. 

Care  required  of  borrower. 

Same. 

Degree  of  skill. 

Borrower,  when  to  repair  injuries. 

Use  of  thing  lent. 

Relending  forbidden. 

Borrower,  when  to  bear  expenses. 

Lender  liable  for  defects. 

Lender  may  require  return  of  thing  lent. 

When   returnable  without  demand. 

Place  of  return. 


S  1884. 

§  1885. 

§  1886. 

§  1887. 

§  1888. 

§  1889. 

§  1890. 

§  1891. 

§  1892. 

§  1893. 

§  1894. 

§  1895. 

§  1896. 

§  1884.  Loan,  what.  A  loan  for  use  is  a  contract  by 
which  one  gives  to  another  the  temporary  possession  and 
use  of  personal  property,  and  the  latter  agrees  to  return 
the  same  thing  to  him  at  a  future  time,  without  reward 
for  its  use.     En.  March  21,  1872. 

§  1885.  Title  to  property  lent.  A  loan  for  use  does  not 
transfer  the  title  to  the  thing;  and  all  its  increase  during 
the  period  of  the  loan  belongs  to  the  lender.  En.  March 
21,  1872. 


{$  1886-1893  LOAN    FOR    USB.  412 

§  1886.  Care  required  of  borrower.  A  borrower  for  use 
must  use  great  care  for  the  preservation  in  safety  and  in 
good  condition  of  the  thing  lent.     En.  March  21,  1872. 

§  1887.  Same.  One  who  borrows  a  living  animal  for 
use  must  treat  it  with  great  kindness,  and  provide  every- 
thing necessary  and  suitable  for  it.    En.  March  21,  1872. 

Depositary  of  living  animals  for  keeping:  See  ante, 
sec.  1834. 

§  1888.  Degree  of  skill.  A  borrower  for  use  is  bound 
to  have^and  to  exercise  such  skill  in  the  care  of  the  thing 
lent  as  he  causes  the  lender  to  believe  him  to  possess. 
En.   March   21,   1872. 

Compare  with  sec.  1976. 

§  1889.  Borrower,  when  to  repair  injuries.  A  borrower 
for  use  must  repair  all  deteriorations  or  injuries  to  the 
thing  lent,  which  are  occasioned  by  his  negligence,  however 
slight.    En.  March  21,  1872. 

§  1890.  Use  of  thing  lent.  The  borrower  of  a  thing  for 
use  may  use  it  for  such  purposes  only  as  the  lender  might 
reasonably  anticipate  at  the  time  of  lending.  En.  March  21, 
1872. 

See  next  section. 

§  1891.  Relending  forbidden.  The  borrower  of  a  thing 
for  use  must  not  part  Avith  it  to  a  third  person,  without 
the  consent  of  the  lender.     En.  March  21,  1872. 

Cal.Rep.Cit.   123,   493. 

§  1892.  Borrower,  when  to  bear  expenses.  The  borrower 
of  a  thing  for  use  must  bear  all  its  expenses  during  the 
loan,  except  such  as  are  necessarily  incurred  by  him  to 
preserve  it  from  unexpected  and  unusual  injury.  For  such 
expenses  he  is  entitled  to  compensation  from  the  lender, 
who  may,  however,  exonerate  himself  by  surrendering  the 
thing  to  the  borrowed.    En.  March  21,  1872. 

§  1893.  Lender  liable  for  defects.  The  lender  of  a  thing 
for  use  must  indemnify  the  borrower  for  damage  caused 
by  defects  or  vices  in  it,  which  he  knew  at  the  time  of 


413  LOAN    FOR    EXCHANGE.  §§1894-1902 

lending,  and  concealed  from  the  borrower.    En.  March  21, 
1872. 

See,  al^o,  ante,  sec.  1833. 

Loan  for  exchange:    See    post,  sees.  1902,  1906. 

§  1894.  Lender  may  require  return  of  thing  lent.  The 
lender  of  a  thing  for  use  may  at  any  time  require  its  return, 
even  though  he  lent  it  for  a  specified  time  or  purpose. 
But,  if,  on  the  faith  of  such  an  agreement,  the  borrower 
has  made  such  arrangements  that  a  return  of  the  thing 
before  the  period  agreed  upon  would  cause  him  loss,  ex- 
ceeding the  benefit  derived  by  him  from  the  loan,  the 
lender  must  indemnify  him  for  such  loss,  if  he  compels 
such  return,  the  borrower  not  having  in  any  manner 
violated  his  duty.     En.  March  21,  1872. 

Cal.Rep.Cit.   50,   348. 

§  1895.  When  returnable  without  demand.  If  a  thing  is 
lent  for  use  for  a  specified  time  or  purpose,  it  must  be 
returned  to  the  lender  without  demand,  as  soon  as  the  time 
has  expired,  or  the  purpose  has  been  accomplished.  In 
other  cases  it  need  not  be  returned  until  demanded.  En. 
March  21,  1872. 

§  1896.  Place  of  return.  The  borrower  of  a  thing  for 
use  must  retvirn  it  to  the  lender,  at  the  place  contemplated 
by  the  parties  at  the  time  of  lending;  or  if  no  particular 
place  was  so  contemplated  by  them,  then  at  the  place 
where  it  was  at  that  time.     En.  March  21,  1872. 


CHAPTER    II. 

LOAN    FOR    EXCHANGE. 

§  1902.  Loan  for  exchange,  what. 

§  1903.  Same. 

§  1904.  Title  to  property  lent. 

§  1905.  Contract  cannot  be  modified  by  lender. 

§  1906.  Certain  sections  applicable. 

§  1902.  Loan  for  exchange,  what.  A  loan  for  exchange 
is  a  contract  by  .which  one  delivers  personal  property  to 
another,  and  the  latter  agrees  to  return  to  the  lender  a 
similar  thing  at  a  future  time,  without  reward  for  its  use. 
En.   March    21,   1872. 

Loan  of  money  as  a  loan  for  exchange:    See  sec.  1912. 


§§  1903-1913  LOAN    OF    MONEY.  414 

§  1903.  Same.  A  loan,  which  the  borrower  is  allowed 
by  the  lender  to  treat  as  a  loan  for  use,  or  for  exchange, 
at  his  option,  is  subject  to  all  the  provisions  of  thi%  chapter. 
En.  March  21,  1872. 

§  1904.  Title  to  property  lent.  By  a  loan  for  exchange 
the  title  to  the  thing  lent  is  transferred  to  the  borrower, 
and  he  must  bear  all  its  expenses,  and  is  entitled  to  all  its 
increase.     En.  March  21,  1872. 

§  1905.  Contract  cannot  be  modified  by  lender.  A  lender 
for  exchange  cannot  require  the  borrower  to  fulfill  his  ob- 
ligations at  a  time,  or  in  a  manner,  different  from  that 
which  was  originally  agreed  upon.    En.  March  21,  1872. 

§  1906.     Certain  sections  applicable.     Sections  1893,  1895,- 
and  1896,  apply  to  a  loan  for  exchange.    En.  March  21,  1872. 


CHAPTER    III. 

LOAN    OF    MONEY. 

§  1912.  Loan  of  money,  defined. 

§   1913.  Loan  to  be  repaid  in  current  money. 

§   1914.  Loan  presumed  to  be  on  interest. 

§   1915.  Interest,  what. 

§  1916.  Annual  rate.    . 

§   1917.  Legal   interest. 

§   191S.  Parties  may  agree  on  any  rate. 

§  1919.  Interest  becomes  part  of  principal,  when. 

§   1920.  Interest  on  judgment. 

§  1912.  Loan  of  money,  defined.  A  loan  of  money  is  a 
contract  by  which  one  delivers  a  sum  of  money  to  another, 
and  the  latter  agrees  to  return  at  a  future  time  a  sum 
equivalent  to  that  which  he  borrowed.  A  loan  for  mere 
use  is  governed  by  the  chapter  on  Loan  for  Use.  En. 
March  21,  1872. 

Cal.Rep.Cit.   57,   602. 

Interest:    See  sees.  1914  et  seq. 

§  1913.  Loan  to  be  repaid  in  current  money.  A  bor- 
rower of  money,  unless  there  is  an  express  contract  to  the 
contrary,  must  pay  the  amount  due  in  such  money  as  is 
current  at  the  time  when  the  loan  becomes  due,  whether 
such  money  is  worth  more  or  less  than  the  actual  money 
lent.     En.  March  21,  1872. 

Cal.Rep.Cit.   113,  229;   114, '261. 

See  sec.  668  Code  Civ.  Proc. 


415  LOAN    OF    MONEY.  §§  1914-1918 

Detriment  caused  by  breach  of  obligation  to  loan:  See 
post,  sec.  3302. 

§  1914.  Loan  presumed  to  be  on  interest.  Whenever  a 
loan  of  money  is  made,  it  is  presumed  to  be  made  upon 
interest,  unless  it  is  otherwise  expressly  stipulated  at 
the  time  in  writing.    En.  March  21,  1872.    Am'd.  1873-4,  244. 

Cal.Rep.Cit.   116,  546  ;   127,  675  ;   137,  471. 

§  1915.     Interest,    what.     Interest    is    the    compensation 

allowed  by  law   or  fixed  by  the  parties   for   the   use,   or 

forbearance,  or  detention  of  money.     En.  March  2i,  1872. 

Am'd.  1873-4,  245. 

Cal.Rep.Cit.  72,  154;  110,  315;  122,  120;  129,  547;  131,  363; 
137,  469;   137,  470;   137,  471. 

§  1916.  Annual  rate.  When  a  rate  of  interest  is  pre- 
scribed by  a  law  or  contract,  without  specifying  the  period 
of  time  by  which  such  rate  is  to  be  calculated,  it  is  to 
be  deemed  an  annual  rate.    En.  March  21,  1872. 

Cal.Rep.Cit.  92,   82. 

§  1917.  Legal  interest.  Unless  there  is  an  express  con- 
tract in  writing,  fixing  a  different  rate,  interest  is  payable 
on  all  moneys  at  the  rate  of  seven  per  cent  per  annum, 
after  they  become  due  on  any  instrument  of  writing,  except 
a  judgment,  and  on  moneys  lent  or  due  on  any  settlement 
of  account,  from  the  day  on  which  the  balance  is  ascer- 
tained, and  on  moneys  received  to  the  use  of  another 
and  detained  from  him.  In  the  computation  of  interest 
for  a  period  less  than  a  year,  three  hundred  and  sixty 
days  are  deemed  to  constitute  a  year.  En.  March  21,  1872. 
Am'd.  1873-4,  245;  1877-8,  87. 

Cal.Rep.Cit.  57,  643;      65,  499;      66,  238;      70,  186;      72,  153 

73,  319;  89,  635;   100.     22;   102,  292;   106,  573;    109,  380 

110,  316;  110,  317;   111,     72;   113,  229;    116,  545;   120,  109 

120,  122;  131,  363;    134,  674;   136,  371;   137,  470. 

Interest  on  judgments:    See    infra,  sec.  1920. 
Compounding  interest:    See    infra,  sec.  1919. 

§  1918.  Parties  may  agree  on'  any  rate.  Parties  may 
agree  in  writing  for  the  payment  of  any  rate  of  interest, 
and  it  shall  be  allowed,  according  to  the  terms  of  the  agree- 
ment, until  the  entry  of  judgment.     En.  March  21,  1872. 

Cal.Rep.Cit.  60,  232;  60,  393  ;  65,  393;  108,  151;  110,  112; 
113,  229;  114,  66;  116,  538;  116,  541;  116,  542;  116,  545; 
116,  546;    120,  109;   120,  122. 


551919-1925 


HIRING    IN    GENERAL. 


416 


§  1919.     Interest  becomes  part  of  principal,  when.     The 

parties  may,  in  any  contract  in  writing  whereby  any  debt 

is  secured  to  be  paid,  agree  that  if  the  interest  on  such 

debt  is  not  punctually  paid,  it  shall  become  a  part  of  the 

principal,  and  thereafter  bear  the  same  rate  of  interest  as 

the  principal  debt.     En.  March  21,  1872. 

Cal.Rep.Cit.     63,  106;     65,  393;   114,     66;   116,  536;   116,  538; 
116,  539;    116,  540;   116,  541;   116,  542;   116,  545;    116,  546, 

§  1920.  interest  on  judgment.  Interest  is  payable  on 
judgments  recovered  in  the  courts  of  this  state,  at  the  rate 
of  seven  per  cent  per  annum,  and  no  greater  rate,  but  such 
interest  must  not  be  compounded  in  any  manner  or  form. 
En.  March  21,  1872.     Am'd.  1873-4,  245. 

Cal.Rep.Cit.   49,  314;    127,  59;    129,  546;    137,  469;   137,  471. 

Interest  as  damages:    See    post,  sec.  3287. 


Chapter  I. 

II. 

III. 


TITLE    V. 

HIRING. 

Hiring  in  General,  §§  1925-1935. 
Hiring  of  Real  Property,  §§  1941-1950. 
Hiring  of  Personal   Property,   §§  1955-1959. 


CHAPTER    I. 
HIRING    IN    GENERAL. 

5  1925.  Hiring,  wtat. 

I  1926.  Products  of  thing. 

§  1927.  Quiet  possession. 

§  1928.  Degree  of  care,  etc.,  on  part  of  hirer. 

§  1929.  Must  repair  injuries,   etc. 

§  1930.  Tiling   let  for  a  particular  purpose. 

§  1931.  When   letter  may   terminate  the  hiring. 

§  1932.  When  hirer  may   terminate  the  hiring. 

§  1933.  When  hiring  terminates. 

§  1934.  When  terminated  by  death,  etc.,  of  party. 

§  1935.  Apportionment  of   hire. 

§1925.  Hiring,  what.  .Hiring  is  a  contract  by  which 
one  gives  to  another  the  temporary  possession  and  use  ol 
property,  other  than  money,  for  reward,  and  the  latter 
agrees  to  return  the  same  to  the  former  at  a  future  time. 
En.  March  21,  1872. 

Hiring  personalty:    See    post,  sees.  1955  et  seq. 


417  HIRING     IN     GENERAL.  §§  1926-1931 

§  1926.  Products  of  thing.  The  products  of  a  thing 
hired,  during  the  hiring,  belong  to  the  hirer.     En.  March 

21,  1872. 

§  1927.  Quiet  possession.  An  agreement  to  let  upon 
hire  binds  the  letter  to  secure  to  the  hirer  the  quiet  pos- 
session of  the  thing  hired  during  the  term  of  the  hiring, 
against  all  persons  lawfully  claiming  the  same.  En.  March 
21,  1872. 

Cal.Rep.Cit.   86,  304;   117,  70. 

Duty  of  letter  of  building  in  this  respect:     See    post, 
sec.  1941. 
Duty  of  letter  of  personalty  likewise:    See  post,  sec.  1955. 

§  1928.  Degree  of  care,  etc.,  on  part  of  hirer.  The  hirer 
of  a  thing  must  use  ordinary  care  for  its  preservation  in 
safety  and  in  good  condition.     En.  March  21,  1872. 

Cal.Rep.Cit.   118,  369. 

§  1929.  IViust  repair  injuries,  etc.  The  hirer  of  a  thing 
must  repair  all  deteriorations  or  injuries  thereto  occasioned 
by  his  ordinary  negligence.     En.   March  21,   1872. 

Cal.Rep.Cit.   59,  566;    86,  304;   92,  551;   102,  480;   118,  369. 

Repairs. — This  requirement  results  from  the  rule  of  the 
previous  section,  and  the  same  rule  applies  to  realty:  See 
post,  sec.  1941.  With  respect  to  the  consequence  of  not 
complying  with  its  provisions,  see  sec.  1931,  infra. 

§  1930.  Thing  let  for  a  particular  purpose.  When  a 
thing  is  let  for  a  particular  purpose  the  hirer  must  not 
use  it  for  any  other  purpose;  and  if  he  does,  the  letter 
may  hold  him  responsible  for  its  safety  during  such  use 
in  all  events,  or  may  treat  the  contract  as  thereby  re- 
scinded.   En.  March  21,  1872. 

Cal.Rep.Cit.   118,   369. 

§  1931.  When  letter  may  terminate  the  hiring.  The 
letter  of  a  thing  may  terminate  the  hiring  and  reclaim 
the  thing  before  the  end  of  the  term  agreed  upon: 

1.  When  the  hirer  uses  or  permits  a  use  of  the  thing 
hired  in  a  manner  contrary  to  the  agreement  of  the 
parties;  or, 

2.  When  the  hirer  does  not,  within  a  reasonable  time 
after  request,  make  such  repairs  as  he  is  bound  to  make. 
En.  March  21,  1872. 


§§  1932-1935  HIRING    IN    GENERAL.  418 

§  1932.  When  hirer  may  terminate  the  hiring.  The 
hirer  of  a  thing  may  terminate  the  hiring  before  the  end 
of  the  term  agreed  upon: 

1.  When  the  letter  does  not,  within  a  reasonable  time 
after  request,  fulfill  his  obligations,  if  any,  as  to  placing 
and  securing  the  hirer  in  the  quiet  possession  of  the  thing 
hired,  or  putting  it  into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or  that  part 
which  was  and  which  the  letter  had  at  the  time  of  the 
hiring  reason  to  believe  was  the  material  inducement  to 
the  hirer  to  enter  into  the  contract,  perishes  from  any 
other  cause  than  the  ordinary  negligence  of  the  hirer.  En. 
March  21,  1872. 

Cal.Rep.Cit.   92,   552. 

§  1933.  When  hiring  terminates.  The  hiring  of  a  thing 
terminates: 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired 
superior  to  that  of  the  letter;  or, 

4.  By  the  destruction  of  the  thing  hired.  En.  March  21, 
1872. 

Cal.Rep.Cit.   98,   425. 

§  1934.  When  terminated  by  death,  etc.,  of  party.  If 
the  hiring  of  a  thing  is  terminable  at  the  pleasure  of  one 
of  the  parties,  it  is  terminated  by  notice  to  the  other  of 
his  death  or  incapacity  to  contract.  In  other  cases  it  is 
not  terminated  thereby.    En.  March  21,  1872. 

§  1935.  Apportionment  of  hire.  When  the  hiring  of  a 
thing  is  terminated  before  the  time  originally  agreed  upon, 
the  hirer'must  pay  the  due  proportion  of  the  hire  for  such 
use  as  he  has  actually  made  of  the  thing,  unless  such  use 
is  merely  nominal,  and  of  no  benefit  to  him.  En.  March 
21,  1872. 

For  the  compensation  to  which  a  depositary  for  hire 
is  entitled  upon  a  termination  of  the  deposit,  see  ante, 
sees.  1853-1855. 


418  HIRING     OF     REAL    PROPERTY.  §§  lail-lSii 

CHAPTER    II. 

HIRING    OF    REAL    PROPERTY. 

§  1941.  Lessor  to  make  dwelling-house  fit  for  its  purpose. 

§  1942.  When  lessee  may  make  repairs,  etc. 

§   1943.  Term  of  hiring  when  no  limit  is  fixed. 

§   1944.  Hiring  of  lodgings  for  indefinite  term. 

§  1945.  Renewal  of  lease  by  lessee's  continued  possession. 

§   1946.  Notice  to  quit. 

§  1947.  Rent,  when  payable. 

§  1948.  Attornment  of  a  tenant  to  a  stranger. 

§  1949.  Tenant  must  deliver  notice  served  on  him. 

§   1950.  Letting  parts  of  rooms  forbidden. 

§  1941.     Lessor  to  make  dwelling-house  fit  for  its  purpose. 

The  lessor  of  a  building  intended  for  the  occupation  of, 

human  beings  must,  in  the  absence  of  an  agreement  to  the 

contrary,  put  it  into  a  condition  fit  for  such  occupation, 

and    repair    all    subsequent    dilapidations    thereof,    which 

render  it  untenantable,  except  such  as  are  mentioned  in 

section  nineteen  hundred  and  twenty-nine.     En.  March  21, 

1872.     Am'd.  1873-4,  245. 

Cal.Rep.Cit.      59,565;      59,566;      66,182;      76,174;      81,     59; 
86,  205;      86,  304;      92,  551;      92,  552;    102,  480;   124,  522; 
124,  523;   128,  190. 

§  1942.  When  lessee  may  make  repairs,  etc.  If  within 
a  reasonable  time  after  notice  to  the  lessor,  of  dilapida- 
tions which  he  ought  to  repair,  he  neglects  to  do  so,  the 
lessee  may  repair  the  same  himself,  where  the  costs  of 
such  repairs  do  not  require  an  expenditure  greater  than 
one  month's  rent  of  the  premises,  and  deduct  the  expenses 
of  such  repairs  from  the  rent,  or  the  lessee  may  vacate 
the  premises,  in  which  case  he  shall  be  discharged  from 
further  payment  of  rent,  or  performance  of  other  condi- 
tions.    En.  March  21,  1872.     Am'd.  1873-4,   246. 

Cal.Rep.Cit.      59,565;      59. .566;      72,312;      76,174;      86    205: 
92,  550;      92,  552;   102,  480;   102,  481;    110,  220;   124,  523: 
128,  190. 

§  1943.  Term  of  hiring  when  no  limit  is  fixed.  A  hiring 
of  real  property,  other  than  lodgings  and  dwelling-houses, 
in  places  where  there  is  no  usage  on  the  subject,  is  pre- 
sumed to  be  for  one  year  from  its  commencement,  unless 
otherwise  expressed  in  the  hiring.    En.  March  21,  1872. 

§  1944.  Hiring  of  lodgings  for  indefinite  term.  A  hiring 
of  lodgings  or  a  dwelling-house  for  an  unspecified  term  is 


§§  1945-1949  HIRING     OP    REAL     PROPERTY.  420 

presumed  to  have  been  made  for  such  length  of  time  as  the 
parties  adopt  for  the  estimation  of  the  rent.  Thus  a  hir- 
ing at  a  monthly  rate  of  rent  is  presumed  to  be  for  one 
month.  In  the  absence  of  any  agreement  respecting  the 
length  of  time  or  the  rent,  the  hiring  is  presumed  to  be 
monthly.     En.  March  21,   1872. 

§  1945.  Renewal  of  lease  by  lessee's  continued  posses- 
sion. If  a  lessee  of  real  property  remains  in  possession 
thereof  after  the  expiration  of  the  hiring,  and  the  lessor 
accepts  rent  from  him,  the  parties  are  presumed  to  have 
renewed  the  hiring  on  the  same  terms  and  for  the  same 
time  not  exceeding  one  month  when  the  rent  is  payable 
■monthly,  nor  in  any  case  one  year.    En.  March  21,  1872. 

Cal.Rep.Cit.   86,  440;   123,  591;   124,  248. 

§  1946.  Notice  to  quit.  A  hiring  of  real  property,  for 
a  term  not  specified  by  the  parties  is  deemed  to  be  re- 
newed as  stated  in  the  last  section,  at  the  end  of  the  term 
implied  by  law,  unless  one  of  the  parties  gives  notice  to 
the  other  of  his  intention  to  terminate  the  same,  at  least 
as  long  before  the  expiration  thereof  as  the  term  of  the 
hiring  itself,  not  exceeding  one  month.    En.  March  21,  1872. 

Cal.Rep.Cit.   86,  439;    124,  248. 

Termination  of  estates  at  will:     See  ante,  sees.  789  et  seq. 

§  1947.  Rent,  when  payable.  When  there  is  no  usage 
or  contract  to  the  contrary,  rents  are  payable  at  the  ter- 
mination of  the  holding,  when  it  does  not  exceed  one  year. 
If  the  holding  is  by  the  day,  week,  month,  quarter,  or 
year,  rent  is  payable  at  the  termination  of  the  respective 
periods,  as  it  successively  becomes  due.  En.  March  21, 
1872. 

§  1948.  Attornment  of  a  tenant  to  a  stranger.  The  at- 
tornment of  a  tenant  to  a  stranger  is  void,  unless  it  is 
made  with  the  consent  of  the  landlord,  or  in  consequence 
of  a  judgment  of  a  court  of  competent  jurisdiction.  En. 
March  21,  1872. 

Grants  of  rents  or  reversions:      See  ante,  sec.  1111. 

Rights  of  lessor  and  lessee,  on  transfer  of  realty:  See 
ante,   sees.   821   et   seq. 

§  1949.  Tenant  must  deliver  notice  served  on  him. 
Every  tenant  who   receives   notice   of   any  proceeding   to 


421  HIRING    OF    PERSONAL    PROPERTY.  §§  1950-1&54 

recover  the  real  property  occupied  by  Mm,  or  the  posses- 
sion thereof,  must  immediately  inform  his  landlord  of  the 
same,  and  also  deliver  to  the  landlord  the  notice,  if  in 
writing,  and  is  responsible  to  the  landlord  for  all  damages 
which  he  may  sustain  by  reason  of  any  omission  to  in- 
form him  of  the  notice,  or  to  deliver  it  to  him  [if]  in  writ- 
ing.    En.  March  21,  1872.     Am'd.  1873-4,  246. 

§  1950.  Letting  parts  of  rooms  forbidden.  One  who 
hires  part  of  a  room  for  a  dwelling  is  entitled  to  the  whole 
of  the  room,  notwithstanding  any  agreement  to  the  con- 
trary; and  if  a  landlord  lets  a  room  as-  a  dwelling  for 
more  than  one  family,  the  person  to  whom  he  first  lets  any 
part  of  it  is  entitled  to  the  possession  of  the  whole  room 
for  the  term  agreed  upon,  and  every  tenant  in  the  build- 
ing, under  the  same  landlord,  is  relieved  from  all  obliga- 
tion to  pay  rent  to  him  while  such  double  letting  of  any 
room  continues.     En.  March  21,  1872. 

Cubic  air  law:     See  post.  Appendix,  title  Lodging-houses. 


CHAPTER    III. 

HIRING    OF    PERSONAL    PROPERTY. 

§   1955.  Obligation;^  of  letter  of  personal  property. 

§   1956.  Ordinary  '  xpenses. 

§  1957.  Extraord'i  ary  expenses. 

§  1958.  Return  of  thing  hired. 

I  1959.  Charter- D'lrty,  what. 

§  1955.     Obligations  of  letter  of  personal  property.     One 

who  lets  personal  property  must  deliver  it  to  the  hirer, 
secure  his  quiet  enjoyment  thereof  against  all  lawful 
claimants,  put  it  into  a  condition  fit  for  the  purpose  for 
which  he  lets  it,  and  repair  all  deteriorations  thereof  not 
occasioned  by  the  fault  of  the  hirer  and  not  the  natural 
result  of  its  use.  En.  March  21,  1872: 
Quiet  enjoyment:     See  ante,  sec.  1927. 

§  1956.  Ordinary  expenses.  A  hirer  of  personal  property 
must  bear  all  such  expenses  concerning  it  as  might  nat- 
urally be  foreseen  to  attend  it  during  its  use  by  him.  All 
other  expenses  must  be  borne  by  the  letter.  En.  March 
21,  1872. 


J§  1957-19G5  SEUVICB    WITH    EMPLOYMENT.  422 

§  1957.  Extraordinary  expenses.  If  a  letter  fails  to  ful- 
fill his  obligations,  as  prescribed  by  section  1955,  the  hirer, 
after  giving  him  notice  to  do  so,  if  such  notice  can  con- 
veniently be  given,  may  expend  any  reasonable  amount 
necessary  to  make  good  the  letter's  default,  and  may  re- 
cover such  amount  from  him.     En.  March  21,  1872. 

Cal.Rep.Cit.    106,    680. 

§  1958.  Return  of  thing  iiired.  At  the  expiration  of  the 
term  for  which  personal  property  is  hired,  the  hirer  must 
return  it  to  the  letter  at  the  place  contemplated  by  the 
parties  at  the  time  of  hiring;  or,  if  no  particular  place  was 
so  contemplated  by  them,  at  the  place  at  which  it  was  at 
that  time.     En.   March  21,  1872. 

§  1S59.  Charter-party,  what.  The  contract  by  which  a 
ship  is  let  is  termed  a  charter-party.  By  it  the  ov/ner  may 
either  let  the  capacity  or  burden  of  the  ship,  continuing  the 
employment  of  the  owner's  master,  crew,  and  equipments, 
or  may  surrender  the  entire  ship  to  the  charterer,  who  then 
provides  them  himself.  The  master  or  a  part  owner  may 
be  a  charterer.     En.  March  21,  1872. 

See  ante,  sec.  965. 

TITLE    VI. 

SERVICE. 

Chapter  I.     Service  with  Employment,  §§  1965-2003. 
II.     Particular    Employments,    §§    2009-2U72. 
III.     Service   without  Employment.    §§   2078-2079. 

CHAPTER    I. 

SERVICE    WITH    EMPLOYMENT. 

Article  I.  Definition  of  Employment,  §  1965. 

II.  Obligations  of  the  Employer,  §§  1969-1971. 

III.  Obligations  of  the  Employee,  §§  1975-1992. 

IV.  Termination   of  Employment,   §§  1996-2003. 

ARTICLE    I. 

DEFINITION    OF    EMPLOYMENT. 
§  1965.     Employment,  what. 
§  1965.     Employment,    what.     The    contract    of    employ- 
ment is  a  contract  by  which  one,  who  is  called  the  em- 


423  SERVICE    WITH    EMPLOYMENT.         §§  1969-1971 

ployer,  engages  another,  who  is  called  the  employee,  to  do 
something  for  the  benefit  of  the  employer,  or  of  a  third 
person.     En.  March  21,  1872. 

Cal.Rep.Cit.   55,  274;   SO,  558;    124,  98. 


ARTICLE    II. 

OBLIGATIONS     OF    THE     EMPLOYER. 

§  1969.      When  employer  must  indemnify  employee. 

§   1970.      When  not. 

§   1971.      Employer  to  indemnify  for  his  own   negligence. 

§  1969.  When  employer  must  indemnify  employee.  An 
.employer  must  indemnify  his  employee  except  as  pre- 
scribed in  the  next  section,  for  all  that  he  necessarily 
expends  or  loses  in  direct  consequence  of  the  discharge 
of  his  duties  as  such,  or  of  his  obedience  to  the  directions 
of  the  employer,  even  though  unlawful,  unless  the  em- 
ployee, at  the  time  of  obeying  such  directions,  believed 
them  to  be  unlawful.     En.  March  21,  1872. 

Cal.Rep.Cit.   68,  173. 

§  1970.  When  not.  An  employer  is  not  bound  to  in- 
demnify his  employee  for  losses  suffered  by  the  latter  m 
consequence  of  the  ordinary  risks  of  the  business  in  which 
he  is  employed,  nor  in  consequence  of  the  negligence  of 
another  person  employed  by  the  same  employer  in  the 
same  general  business,  unless  the  negligence  causing  tne 
injury  was  committed  in  the  performance  of  a  duty  tne 
employer  owes  by  law  to  the  employee,  or  unless  tne  em- 
ployer has  neglected  to  use  ordinary  care  in  the  selection 
of  the  culpable  employee.  En.  March  21,  1872.  Am'd. 
1903,   256. 


Cal.Rep.Cit 

66,  304 

88,  367 

98,  21 

108,  132 


51,  117;  51,  257 
68,  173;  68,  175 
88,  368;  88,  371 
98,  22;  98,  26 
113,  601;  126,  64 


53,  36;   57,  29 

70,  394;   73,  28 

92,  392;   96,  273 

100,  564;  100,  567 

126,  65;  128,  53 


57,  31 

79,  09 

96,  498 

103,  264 


§  1971.  Employer  to  indemnify  for  his  own  negligence. 
An  employer  must  in  all  cases  indemnify  his  employee  for 
losses  caused  by  the  former's  want  of  ordinary  care.  En. 
March  21,  1872. 

Cal.Rep.Cit.  67,  609;   90,  499;   91,  58;   108,  133;   125,  635. 


SS  1975-1978  SERVICE    WITH    EMPLOYMENT.  424 


ARTICLE    III. 
OBLIGATIONS    OF    THE    BMPLOYBB. 

S  1975.  Duties  of  gratuitous  employee. 

§  1976.  Same. 

§   1977.  Same. 

§  1978.  Duties  of  employee  for  reward. 

§  1979.  Duties  of  employee  for  his  own  benefit, 

§  1980.  Contracts  for  service  limited  to  two  years. 

§  1981.  Employee  must  obey  employer. 

§  1982.  Employee  to  conform  to  usage. 

§   1983.  Degree  of  skill   required. 

§   1984.  Must  use  what  skill  he  has. 

§   1985.  What  belongs  to  employer. 

§  1986.  Duty  to  account. 

§  1987.  Employee  not  bound  to  deliver  without  demand. 

§  1988.  Preference  to  be  given  to  employers. 

§  1989.  Responsibility  of  employee  for  substitute, 

§  1990.  Responsibility   for  negligence. 

§   1991.  Surviving  employee. 

§  1992.  Confidential  employment, 

§  1975.  Duties  of  gratuitous  employee.  One  who,  with- 
out consideration,  undertakes  to  do  a  service  for  another, 
is  not  bound  to  perform  the  same,  but  if  he  actually  enters 
upon  its  performance,  he  must  use  at  least  slight  care  and 
'diligence  therein.     En.   March  21,  1872. 

Service  without  employment:      See  post,  sec.  2078. 

Obligations  of  gratuitous   carrier:      Sec.   20S9. 

§  1976.  Same.  One  who,  by  his  own  special  request, 
induces  another  to  intrust  him  with  the  performance  of  a 
service,  must  perform  the  same  fully.  In  other  cases, 
one  who  undertakes  a  gratuitous  service  may  relinquish  it 
at  any  time.     En.  March  21,  1872. 

Compare  with  sec.  1888. 

§  1977.  Same.  A  gratuitous  eraployee,  who  accepts  a 
written  power  of  attorney,  must  act  under  it  so  long  as 
it  remains  in  force,  or  until  he  gives  notice  to  his  em- 
ployer that  he  will  not  do  so.     En.  March  21,  1872. 

§  1978.  Duties  of  employee  for  reward.  One  who,  for  a 
good  consideration,  agrees  to  serve  another,  must  perform 
the  service,  and  must  use  ordinary  care  and  diligence 
thereir;,  so  long  as  he  is  thus  employed.     En.  March  21, 

1872. 

Cal.Kep.Cit.   113,   104. 


425  SERVICE     WITH     EMPLOYMENT.  §§  1979-1983 

Employee  to  use  ordinary  care. — He  is  bound  to  exercise 
a  reasonable  degree  of  skill,  unless  his  employer  knows  of 
his  want  of  skill:  Sec.  1983;  and  is  always  bound  to  use 
such  skill  as  he  possesses:  Sec.  1984.  For  the  employee's 
liability  for  his  culpable  negligence,  see  post,  sec.  1990. 

§  1979.     Duties   of   employee   for    his    own    benefit.     One 

who  is  employed  at  his  own  request  to  do  that  which  is 
more  for  his  own  advantage  than  for  that  of  his  employer, 
must  use  great  care  and  diligence  therein  to  protect  the 
interest  of  the  latter.    En.  March  21,  1872. 

§  1980.  Contracts  for  service  limited  to  two  years.  A 
contract  to  render  personal  service,  other  than  a  contract 
of  apprenticeship,  as  provided  in  the  chapter  on  Master 
and  Servant,  cannot  be  enforced  against  the  employee  be- 
yond the  term  of  two  years  from  the  commencement  of 
service  under  it;  but  if  the  employee  voluntarily  continues 
his  service  under  it  beyond  that  time,  the  contract  may 
be  referred  to  as  affording  a  presumptive  measure  of  the 
compensation.     En.  March  21,  1872. 

Master  and  servant:  See  post,  sees.  2009  et  seq.;  and  as 
to  apprenticeship:      See  ante,  sees.   264  et  seq. 

§  1981.  Employee  must  obey  employer.  An  employee 
must  substantially  comply  with  all  the  directions  of  his 
employer  concerning  the  service  on  which  he  is  engaged, 
except  where  such  obedience  is  impossible  or  unlawful, 
or  would  impose  new  and  unreasonable  burdens  upon  the 
employee.     En.  March  21,  1872.     Am'd.  1873-4,  246. 

Obedience  required  from  factor:      Sec.   2027. 

§  1982.  Employee  to  conform  to  usage.  An  employee 
must  perform  his  service  in  conformity  to  the  usage  of 
the  place  of  performance,  unless  otherwise  directed  by  his 
employer,  or  unless  it  is  impracticable,  or  manifestly  in- 
jurious to  his  employer  to  do  so.    En.  March  21,  1872. 

Cal.Rep.Cit.  99,  371. 

§  1983.  Degree  of  skill  required.  An  employee  is  bound 
to  exercise  a  reasonable  degree  of  skill,  unless  his  em- 
ployer has  notice,  before  employing  him,  of  his  want  of 
skill.     En.  March  21,  1872. 

Cal.ReD.Cit.   107.   209. 


f§  1984-19  S9  SERVICE    WITH    EMPLOYMENT.  426 

§  1984.  Must  use  what  skill  he  has.  An  employee  is  al- 
ways bound  to  use  such  skill  as  he  possesses,  so  far  as  the 
same  is  required,  for  the  service  specified.  En.  March  21, 
1872.     Am'd.  1873-4,  247. 

Cal.Rep.Cit.   107,   209. 

§  1985.  What  belongs  to  employer.  Everything  which 
an  employee  acquires  by  virtue  of  his  employment,  except 
the  compensation,  if  any,  which  is  due  to  him  from  his 
employer,  belongs  to  the  latter,  whether  acquired  law- 
fully or  unlawfully,  or  during  or  after  the  expiration  of  the 
term  of  his  employment.     En.  March  21,  1872. 

Cal.Rep.Cit.   133,   63S. 

§  1986.  Duty  to  account.  An  employee  must,  on  de- 
mand, render  to  his  employer  just  accounts  of  all  his 
transactions  in  the  course  of  his  service,  as  often  as  may 
be  reasonable,  and  must,  without  demand,  give  prompt 
notice  to  his  employer  of  everything  which  he  receives  for 
his  account.     En.  March  21,  1872. 

§  1987.     Employee  not  bound  to  deliver  without  demand. 

An  employee  who  receives  anything  on  account  of  his 
employer,  in  any  capacity  other  than  that  of  a  mere  serv- 
ant, is  not  bound  to  deliver  it  to  him  until  demanded, 
and  is  not  at  liberty  to  send  it  to  him  from  a  distance, 
without  demand,  in  any  mode  involving  greater  risK  than 
its  retention  by  the  erfiployee  himself.  En.  March  21,  1872. 
Servant  to  pay  over  without  demand:     See  sec.  2014. 

§  1988.  Preference  to  be  given  to  employers.  An  em- 
ployee who  has  any  business  to  transact  on  his  own  ac- 
count, similar  to  that  intrusted  to  him  by  his  employer, 
must  always  give  the  latter  the  preference.  En.  March  21, 
1872.     Am'd.  1873-4,  247. 

§  1989.     Responsibility  of  employee  for  substitute.      An 

employee  who  is  expressly  authorized  to  employ  a  substi- 
tute is  liable  to  his  principal  only  for  want  of  ordinary 
care  in  his  selection.  The  substitute  is  directly  responsible 
to  the  principal.    En.  March  21,  1872. 

Delegation  of  agent's  authority:  See  post,  sees.  2349 
et  seq. 


427  SERVICE     WITH     EMPLOYMENT.  §§  1990-1997 

§  1990.  Responsibility  for  negligence.  An  employee  who 
is  guilty  of  a  culpable  degree  of  negligence  is  liable  to  his 
employer  for  the  damage  thereby  caused  to  the  latter;  and 
the  employer  is  liable  to  him,  if  the  service  is  not  gratu- 
itous, for  the  value  of  such  services  only  as  are  properly 
rendered.     En.  IMarch  21,  1872. 

Cal.Rep.Cit.   78,   314. 

§  1991.  Surviving  employee.  Where  service  is  to  be 
rendered  by  two  or  more  persons  jointly,  and  one  of  them 
dies,  the  survivor  must  act  alone,  if  the  service  to  be  ren- 
dered is  such  as  he  can  rightly  perform  without  the  aid  of 
the  deceased  person,  but  not  otherwise.  En.  March  21, 
1872. 

§  1992.  Confidential  employment.  The  obligations  pe- 
culiar to  confidential  employments  are  defined  in  the  title 
on  Trusts.     En.  March  21,  1872. 

Confidential  employments:  See  title  on  Trusts,  post, 
sees.  2215  et  seq. 


ARTICLE    IV. 

TERMINATION     OF     EMPLOYMENT. 

S  1996.  Termination  by  death,  etc.,  of  employer. 

§  1997.  Employment,  how  terminated. 

§  1998.  Continuance  of   service   in   certain   cases. 

§  1999.  Termination  at  will. 

§  2000.  Termination   by  employer  for  fault. 

§  2001.  Termination  by  employee  for   fault. 

§  2002.  Compensation    of   employee   dismissed   for   cause. 

§  2003.  Compensation  of  employee  leaving  for  cause. 

§  1996.  Termination  by  death,  etc.,  of  employer.  Every 
employment  in  which  the  power  of  the  employee  is  not 
coupled  with  an  interest  in  its  subject  is  terminated  by 
notice  to  him  of: 

1.  The  death  of  the  employer;  or, 

2.  His  legal  incapacity  to  contract.     En.  March  21,  1872. 
Cal.Rep.Cit.   76,   509. 

Termination  of  agency:     See  post,  sees.  2355  et  seq. 

§  1997.  Employment,  how  terminated.  Every  employ- 
ment is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 


§§  199S-2001  SERVICE    WITH    EMPLOYMENT.  428 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or,  . 

4.  By  his  legal  incapacity  to  act  as  such.  En.  March  21, 
1872. 

Cal.Rep.Cit.   124,   98. 

Termination  of  employment:     See  last  section. 
Termination  of  agency  generally:     See  post,  sees.  2355 
et  seq. 

§  1998.  Continuance  of  service  in  certain  cases.  An  em- 
ployee, unless  the  term  of  his  service  has  expired,  or  un- 
less he  has  a  right  to  discontinue  it  at  any  time  without 
notice,  must  continue  his  service  after  notice  of  the  death 
or  incapacity  of  his  employer,  so  far  as  is  necessary  to  pro- 
tect from  serious  injury  the  interests  of  the  employer's 
successor  in  interest,  until  a  reasonable  time  after  notice 
of  the  facts  has  been  communicated  to  such  successor. 
The  successor  must  compensate  the  employee  for  such  ser- 
vice according  to  the  terms  of  the  contract  of  employment. 
En.  March  21,  1872. 

Cal.Rep.Cit.   76,   509. 

§  1999.  Termination  at  will.  An  employment  having  no 
specified  term  may  be  terminated  at  the  w^m  of  either 
party,  on  notice  to  the  other,  except  where  otherwise  pro- 
vided by  this  title.     En.  March  21,  1872. 

Cal.Rep.Cit.   124,   96. 

§2000.  Termination  by  employer  for  fault.  An  employ- 
ment, even  for  a  specified  term,  may  be  terminated  at  any 
time  by  the  employer,  in  case  of  any  willful  breach  of 
duty  by  the  employee  in  the  course  of  his  employment,  or 
in  case  of  his  habitual  neglect  of  his  duty  or  continued  in- 
capacity to  perform  it.     En.  March  21,  1872. 

Cal.Rep.Cit.   69,   646. 

Servant,  when  may  be  discharged:     See  post,  sec.  2015. 

Seamen,  when  may  be  discharged:  See  post,  sec.  2050; 
wrongful  discharge  of  seamen:     Post,  sec.  2057. 

§2001.     Termination  by  employee  for  fault.     An  employ- 
ment, even  for  a  specified  term,  may  be  terminated  by  the 
employee  at  any  time,  in  case  of  any  willful  or  permanent  . 
breach  of  the  obligations  of  his  employer  to  him  as  an 
employee.    En.  March  21,  1872. 


429  PARTICULAR    EMPLOYMENTS.  §§  2002-2009 

Employee's  compensation  in  sucli  case:     See  post,  sec. 
2003. 

§2002.     Compensation  of  employee  dismissed  for  cause. 

An  employee,  dismissed  by  liis  employer  for  good  cause, 
is  not  entitled  to  any  compensation  for  services  rendered 
since  the  last  day  upon  which  a  payment  became  due  to 
him  under  the  contract.     En.  March  21,  1872. 
Cal.Rep.Cit.   69,   646. 

Disciiarging  servant:     See  sec.  2015. 

§  2003.     Compensation    of   employee     leaving     for   cause. 

An  employee  who  quits  the  service  of  his  employer  for 
good  cause  is  entitled  to  such  proportion  of  the  compensa- 
tion Wiiich  would  become  due  in  case  of  full  performance, 
as  the  services  which  he  has  already  rendered  bear  to  the 
services  which  he  was  to  render  as  full  performance.  En. 
March  21,  1872. 

Terminating  employment  by  employee:     See  supra,  sec. 
2001. 


CHAPTER    II. 

PARTICULAR     EMPLOYMENTS. 

Article  I.  Master   and   Servant,   §§  2009-2015. 

II.  Agents,    §§  2019-2022. 

III.  Factors,   §§  2026-2030. 

IV.  Shipmasters,   §§  2034-2044. 

V.      Mates   and   Seamen,   §§  204S-2066. 
VI.      Ship's  Managers,   §§  2070-2072. 

ARTICLE    I. 
MASTER    AND    SERVANT. 

§  2009.  Servant,   what. 

§  2ul0.  Term  of  hiring. 

§  2011.  Same. 

§  2012.  Renewal  of  hiring. 

§  2013.  Time  of  service. 

§  2014.  Servant  to  pay  over  without  demand. 

§  2015.  When  servant  may  be  discharged. 

§  2009.  Servant,  what.  A  servant  is  one  who  is  em- 
ployed to  render  personal  service  to  his  employer,  other- 
wise than  in  the  pursuit  of  an  independent  calling,  and 
who  in  such  service  remains  entirely  under  the  control  and 


5§  2010-2014  PARTICULAR     EMPLOYMENTS.  43C 

direction  of  the  latter,  who  is  called  his  master.  En. 
March  21.  1872. 

Cal.Rep.Cit.   124,  97;   124,  98;   131,  459;   138,  118. 

Employer  and  employee:  See,  generally,  sees.  1965  et 
seq. 

Obligations  of  employer:      Sees.  1969  et  seq. 

Obligations  of  employee:     Sees.  1975  et  seq. 

§2010.  Term  of  hiring.  A  servant  is  presumed  to  have 
been  hired  for  such  length  of  time  as  the  parties  adopt  for 
the  estimation  of  wages.  A  hiring  at  a  yearly  rate  is  pre- 
sumed to  be  for  one  year;  a  hiring  at  a  daily  rate,  for  one 
day;  a  hiring  by  piece  work,  for  no  specified  term.  En. 
March  21,  1872. 

Cal.Rep.Cit.   Ill,  316;   124,  97;   124,  98;   127,  592. 

§2011.  Same.  In  the  absence  of  any  agreement  or  cus- 
tom as  to  the  term  of  service,  the  time  of  payment,  or  rate 
or  value  of  wages,  a  servant  is  presumed  to  be  hired  by  the 
month,  at  a  monthly  rate  of  reasonable  wages,  to  be  paid 
when  the  service  is  performed.     En.  March  21,  1872. 

Cal.Rep.Cit.   Ill,  317;   124,  97;    124,  98;   127,  592. 

§2012.  Renewal  of  liiring.  Where,  after  the  expiration 
of  an  agreement  respecting  the  wages  and  the  term  of 
service,  the  parties  continue  the  relation  of  master  and 
servant,  they  are  presumed  to  have  renewed  the  agree- 
ment for  the  same  wages  and  term  of  service.  En.  March 
21,  1872. 

Cal.Rep.Cit.   89,   550. 

§  2013.  Time  of  service.  The  entire  time  of  a  domestic 
servant  belongs  lo  the  master;  and  the  time  of  other  serv- 
ants to  such  extent  as  is  usual  in  the  business  in  which 
they  serve,  not  exceeding  in  any  case  ten  hours  in  the  day. 
En.  March  21,  1872. 

§  2014.  Servant  to  pay  over  witiiout  demand.  A  servant 
must  deliver  to  his  master,  as  soon  as  with  reasonable 
diligence  he  can  find  him,  everything  that  he  receives  for 
his  account,  without  demand;  but  he  is  not  bound,  without 
orders  from  his  master,  to  send  anything  to  him  through 
another  person.     En.  March  21,  1872. 

One  who  appropriates  to  his  own  use  property  of  his 
employer  is  guilty  of  embezzlement:     Pen.  Code,  sec.  508. 


431  PARTICULAR    EMPLOYMENTS.  §§  2015-2021 

Employee  not  bound  to  deliver  to  employer  without  de- 
mand:    See  post,  sec.  19S7. 

§2015.  When  servant  may  be  discharged.  A  master 
may  discharge  any  servant,  other  than  an  apprentice, 
whether  engaged  for  a  fixed  term  or  not: 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his 
service,  or  of  gross  immorality,  though  unconnected  with 
the  same;  or, 

2.  If,  being  employed  about  the  person  of  the  master, 
or  in  a  confidential  position,  the  master  discovers  that  he 
has  been  guilty  of  misconduct,  before  or  after  ihe  com- 
mencement of  his  service,  of  such  a  nature  that,  if  the 
master  had  known  or  contemplated  it,  he  would  not  have 
so  employed  him.     En.  March  21,  1872. 

Termination  of  employment:     See  ante,  sec.  2001. 
Compensation  of   employee   dismissed   for   cause:      See 
ante,  sec.  2002. 


ARTICLE    II. 

AGENTS. 

§   2019.  Agent  to  conform  to  his  authority. 

§  2020.  Must  keep  his  principal  informed. 

§  2021.  Collecting   agent. 

§  2022.  Responsibility  of  subagent. 

§2019.  Agent  to  conform  to  his  authority.  An  agent 
must  not  exceed  the  limits  of  his  actual  autliority,  as  de- 
fined by  the  title  on  Agency.     En.  March  21,  1872. 

Cal.Rep.Cit.   68,   162;   125,   614. 

Agency:      Sees.  2295  et  seq. 

Actual  authority:     Post,  sec.  2316. 

Ostensible  authority:     Post,  sec.  2317. 

§2020.  Must  keep  his  principal  informed.  An  agent 
must  use  ordinary  diligence  to  keep  his  principal  informed 
of  his  acts  in  the  course  of  the  agency.  En.  March  21, 
1872. 

§2021.  Collecting  agent.  An  agent  employed  to  collect 
a  negotiable  instrument  must  collect  it  promptly,  and  take 
all  measures  necessary  to  charge  the  parties  thereto,  in 


S§  2022-2028  PARTICULAR    EMPLOYMENTS.  432 

case  of  its  dishonor;  and,  if  it  is  a  bill  of  exchange,  must 
present  it  for  acceptance  with  reasonable  diligence.  En. 
March  21,  1872. 

§2022.  Responsibility  of  subagent.  A  mere  agent  of  an 
agent  is  not  responsible  as  such  to  the  principal  of  the 
latter.    En.  March  21,  1872. 


ARTICLE    III. 

FACTORS. 

§  2026.  Factor,  what. 

§   2027.  Obedience  required  from  factor. 

§  2028.  Sales  on  credit. 

§  2029.  Liability  of  factor  under  guaranty  commission. 

§  2030.  Factor  cannot  relieve  himself  from  liability. 

§  2026.  Factor,  what.  A  factor  is  an  agent  who,  In  the 
pursuit  of  an  independent  calling,  is  employed  by  another 
to  sell  property  for  him,  and  is  vested  by  the  latter  with 
the  possession  or  control  of  the  property,  or  authorized 
to  receive  payment  therefor  from  the  purchaser.  En. 
March  21,  1872. 

Cal.Rep.Cit.   66,   461. 

Factor's  authority:     See  sees.  2368,  2369, 

Factor's  power  to  pledge  principal's  goods:  See  sees, 
2368,  2991. 

§2027.  Obedience  required  from  factor.  A  factor  must 
obey  the  instructions  of  his  principal  to  the  same  extent 
as  any  other  employee,  notwithstanuiug  any  advances  he 
may  have  made  to  his  principal  upon  the  property  con- 
signed to  him,  except  that  if  the  principal  forbids  him  to 
sell  at  the  market  price,  he  may,  nevertheless,  sell  for  his 
reimbursement,  after  giving  to  his  principal  reasonable  no- 
tice of  his  intention  to  do  so,  and  of  the  time  and  place 
of  sale  and  proceeding  in  all  respects  as  a  pledgee.  En, 
March  21,  1872. 

Cal.Rep.Cit.   85,   377. 

Obedience  required  from  employees  generally:  Ante, 
sec.  1981. 

§  2028.  Sales  on  credit.  A  factor  may  sell  property  con- 
signed to  him  on  such  credit  as  is  usual;  but,  having  once 


433  PARTICULAR     EMPLOYMENTS.  §§  2029-2D36 

agreed  with  the  purchaser  upon  the  term  of  credit,  may 
not  extend  it.     En.  March  21,  1872. 
Authority  to  sell  on  credit:     Post,  sec.  2368. 

§2029.  Liability  of  factor  under  guaranty  commission. 
A  factor  who  charges  his  principal  with  a  guaranty  com- 
mission upon  a  sale,  thereby  assumes  absolutely  to  pay 
the  price  when  it  falls  due,  as  if  it  were  a  debt  of  his 
own,  and  not  as  a  mere  guarantor  for  the  purchaser;  but 
he  does  not  thereby  assume  any  additional  responsibility 
lor  the  safety  of  his  remittance  of  the  proceeds.  En.  March 
21,  1872. 

§2030.  Factor  cannot  relieve  himself  frcm  liability.  A 
factor  who  receives  property  for  sale,  under  a  general 
agreement  or  usage  to  guarantee  the  sales  or  the  remit- 
tance of  the  proceeds,  cannot  relieve  himself  from  re- 
sponsibility therefor  without  the  consent  of  his  principal. 
En.  March  21,  1872. 


ARTICLE    IV. 

SHIPMASTERS. 

§  2034.  Appointment  of  master. 

§   2035.  When  must  be  on  board. 

§   2036.  Pilotage. 

§   2037.  Power  of  master  over  seamen. 

§   2038.  Power  of  master  over  passengers. 

§   2039.  Impressing  private  stores. 

§   2040.  Wlien  may  abandon  tlie  ship. 

§   2041.  Duties  on  abandonment. 

§   2042.  When  master  cannot  trade  on  his  own  account. 

§   2043.  Care  and  diligence. 

§   2044.  Authority  of  master. 

§  2034.  Appointment  of  master.  The  master  of  a  ship  is 
appointed  by  the  owner  and  holds  during  his  pleasure. 
En.  March  21,  1872. 

§  2035.  When  must  be  on  board.  The  master  of  a  ship 
is  bound  to  be  always  on  board  when  entering  or  leaving 
a  port,  harbor,  or  river.     En.  March  21,  1872. 

§  2036.     Pilotage.     On  entering  or  leaving  a  port,  harbor, 
or  river  the  master  of  a  ship  must  take  a  pilot  if  one  offers 
himself  and  while  the  pilot  is  on  board  the  navigation  of 
the  ship  devolves  on  him.     En.  March  21,  1872. 
Civ.  Code— 19 


§§2037-2044  PARTICULAR    EMPLOYMENTS.  434 

Duties  of  pilots  and  pilot  commissioners:  See  Pol.  Code, 
sees.  2429-2491. 

§  2037.  Power  of  master  over  seamen.  The  master  of  a 
ship  may  enforce  the  obedience  of  the  mate  and  seamen 
to  his  lawful  commands  by  confinement  and  other  reason- 
able corporal  punishment,  not  prohibited  by  acts  of  con- 
gress, being  responsible  for  the  abuse  of  his  power.  En. 
March  21,  1872. 

§2038.  Power  of  master  over  passengers.  The  master 
of  a  ship  may  confine  any  person  on  board,  during  a  voy- 
age, for  willful  disobedience  to  his  lawful  commands.  En. 
March  21,  1872. 

§  2039.  Impressing  private  stores.  If,  during  a  voyage, 
the  ship's  supplies  fail,  the  master,  with  the  advice  of  the 
officers,  may  compel  persons  who  have  private  supplies 
on  board  to  surrender  them  for  the  common  want  on  pay- 
ment of  their  value,  or  giving  security  therefor.  En.  March 
21,  1872. 

§2040.  When  may'abandon  the  ship.  The  master  of  a 
■ohip  must  not  abandon  it  during  the  voyage,  without  the 
advice  of  the  other  officers.     En.  March  21,  1872. 

§2041.  Duties  on  abandonment.  The  master  of  a  ship, 
upon  abandoning  it,  must  carry  with  him,  so  far  as  it  is 
in  his  power,  the  money  and  the  most  valuable  of  the  goods 
on  board,  under  penalty  of  being  personally  responsible. 
If  the  articles  thus  taken  are  lost  from  causes  beyond  his 
control,  he  is  exonerated  from  liability.    En.  March  21,  1872. 

§  2042.     When  master  cannot  trade  on  his  own  account. 

The  master  of  a  ship,  who  engages  tor  a  common  profit 
on  the  cargo,  must  not  trade  on  his  own  account,  and  if 
he  does,  he  must  account  to  his  employer  for  all  profits 
thus  made  by  him.    En.  March  21,  1872. 

§2043.  Care  and  diligence.  The  master  of  a  ship  must 
use  great  care  and  diligence  in  the  performance  of  his 
duties,  and  is  responsible  for  all  damage  occasioned  by  his 
negligence,  however  slight.    En.  March  21,  1872. 

§  2044.  Authority  of  master.  The  authority  and  liability 
of  the  master  of  a  ship,  as  an  agent  for  the  owners  of  the 


435  PARTICULAR     EMPLOYMENTS.  §§  2U4S-2050 

ship  and  cargo,  are  regulated  by  the  title  on  Agency.  En. 
March  21,  1872. 

Agency  in  general:     Post,  sees.  2295  et  seq. 

Bottomry,  master  may  hypothecate  upon:  Post,  sees. 
3019  et  seq. 

Respondentia,  master  may  hypothecate  upon:  Post,  sees. 
3038  et  seq. 


ARTICLE    V. 

MATES    AND    SEAMEN. 

§  2048.  Mate,  what. 

§  2049.  Seamen,  what. 

§  2050.  Mate   and  seamen,  how  engaged   and   discharged. 

§  2051.  Unseaworthy  vesseL 

§  2052.  Seamen  not  to  lose  wages  or  lien  by  agreement. 

§  2053.  Special   agreement  with   seamen. 

§  2054.  "Wages  depend  on  freightage. 

§  2055.  When  wages,  etc.,  begin. 

§  2056.  Wages,  where  voyage  is  broken  up  before  departure. 

§  2057.  Wrongful  discharge. 

§  2058.  Wages,  when  not  lost  by  wreck. 

§  2059.  Certificate. 

§  2060.  Disabled  seamen. 

§  2061.  Maintenance  of  seamen  during  sickness. 

§  2062.  Death  on  the  voyage. 

§  2063.  Theft,  etc.,  forfeits  wages. 

§  2064.  Seamen  cannot  ship  goods. 

§  2065.  Embezzlement   and   injuries.     (Repealed.) 

§  2066.  Law  governing  seamen. 

§2048.  Mate,  what.  The  mate  of  a  ship  is  the  officer 
next  in  rank  to  the  master,  and  in  case  of  the  master's 
disability  he  must  take  his  place.  By  so  doing  he  does  not 
lose  any  of  his  rights  as  mate.     En.  March  21,  1872. 

§  2049.  Seamen,  what.  All  persons  employed  in  the 
navigation  of  a  ship,  or  upon  a  voyage,  other  than  the  mas- 
ter and  mate,  are  to  be  deemed  seamen  within  the  pro- 
visions of  this  code.     En.  March  21,  1872. 

Cal.Rep.Cit.   134,   620. 

§  2050.  Mate  and  seamen,  hew  engaged  and  discharged. 
The  mate  and  seamen  of  a  ship  are  engaged  by  the  master, 
and  may  be  discharged  by  him  at  any  period  of  the  voyage, 
for  willful  and  persistent  disobedience  or  gross  disqualifir-a- 
tion,  but  cannot  otherwise  be  discharged  before  the  tei-mi- 
nation  of  the  voyage.    En.  March  21,  1872. 


§§  2051-2057  PARTICULAR    EMPLOYMENTS.  436 

§  2051.  Unseaworthy  vessel.  A  mate  or  seaman  is  not 
bound  to  go  to  sea  in  a  ship  tliat  is  not  seaworthy;  and  if 
there  is  reasonable  doubt  of  its  seaworthiness,  he  may  re- 
fuse to  proceed  until  a  proper  survey  has  been  had.  En. 
March  21,  1872. 

Seaworthiness  defined:     Post,  sec.  2682. 

§2052.     Seamen  not  to  lose  wages  or  lien  by  agreement. 

A  seaman  cannot,  by  reason  of  any  agreement,  be  de- 
prived of  his  lien  upon  the  ship,  or  of  any  remedy  for  the 
recovery  of  his  wages  to  which  he  would  otherwise  have 
been  entitled.  Any  stipulation  by  which  he  consents  to 
abandon  his  right  to  wages  in  case  of  the  loss  of  the  ship, 
or  to  abandon  any  right  he  may  have  or  obtain  in  the 
nature  of  salvage,  is  void.  En.  March  21,  1872. 
Wages  in  case  of  loss  of  ship:     Post,  sec.  2058. 

§2053.     Special    agreement    with    seamen.     No     special 

agreement  entered  into  by  a  seaman  can  impair  any  of  his 
rights,  or  add  to  any  of  his  obligations,  as  defined  by  law, 
unless  he  fully  understands  the  effect  of  the  agreement, 
and  receives  a  fair  compensation  therefor.  En.  March  21, 
1872. 

§  2054.  Wages  depend  on  freightage.  Except  as  here- 
inafter provided,  the  wages  of  seamen  are  due  when,  and 
so  far  only  as,  freightage  is  earned,  unless  the  loss  of 
freightage  is  owing  to  the  fault  of  the  owner  or  master. 
En.  March  21,  1872. 

§  2055.  When  wages,  etc.,  begin.  The  right  of  a  mate 
or  seaman  to  wages  and  provisions  begins  either  from  the 
time  he  begins  work,  or  from  the  time  specified  in  the 
agreement  for  his  beginning  work,  or  from  his  presence  on 
board,  whichever  first  happens.     En.  March  21,  1872. 

§  2056.  Wages,  where  voyage  is  broken  up  before  de- 
parture. Where  a  voyage  is  broken  up  before  departure 
of  the  ship,  the  seamen  must  be  paid  for  the  time  they 
have  served,  and  may  retain  for  their  indemnity  such  ad- 
vances as  they  have  received.    En.  March  21,  1872. 

§2057.  Wrongful  discharge.  When  a  mate  or  seaman 
is  wrongfully  discharged,  or  is  driven  to  leave  the  ship  by 


437  PARTICULAR     EMPLOYMENTS.  §§  2058-2064 

the  cruelty  of  the  master  on  the  voyage,  it  is  then  ended 
with  respect  to  him,  and  he  may  thereupon  recover  his 
full  wages.     En.  March  21,  1872. 

§  2058.  Wages,  when  not  lost  by  wreck.  In  case  of  loss 
or  wreck  of  the  ship,  a  seaman  is  entitled  to  his  wages  up 
to  the  time  of  the  loss  or  wreck,  whether  freightage  has 
been  earned  or  not,  if  he  exerts  himself  to  the  utmost  to 
save  the  ship,  cargo,  and  stores.    En.  March  21,  1872. 

§  2059.  Certificate.  A  certificate  from  the  master  or 
chief  surviving  officer  of  a  ship,  to  the  effect  that  a  sea- 
man exerted  himself  to  the  utmost  to  save  the  ship,  cargo, 
and  stores,  is  presumptive  evidence  of  the  fact.  En.  March 
21,  1872. 

§  2060.  Disabled  seamen.  Where  a  mate  or  seaman  is 
'  prevented  from  rendering  service  by  illness  or  injury,  in- 
curred without  his  fault,  in  the  discharge  of  his  duty  on 
the  voyage,  or  by  being  wrongfully  discharged,  or  by  a 
capture  of  the  ship,  he  is  entitled  to  wages  notwithstand- 
ing; but  in  case  of  a  capture,  a  ratable  deduction  for  sal- 
vage is  to  be  made*     En.  March  21,  1872. 

§  2061.     Maintenance    of   seamen    during    sickness.     If   a 

mate  or  seaman  becomes  sick  or  disabled  during  the  voy- 
age without  his  fault,  the  expense  of  furnishing  him  with 
suitable  medical  advice,  medicine,  attendance,  and  other 
provision  for  his  wants,  must  be  borne  by  the  ship  till  the 
close  of  the  voyage.     En.  March  21,  1872. 

§  2062.  Death  on  the  voyage.  If  a  mate  or  seaman  dies 
during  the  voyage,  his  personal  representatives  are  en- 
titled to  his  wages  to  the  time  of  his  death,  if  he  would 
have  been  entitled  to  them  had  he  lived  to  the  end  of  the 
voyage.     En.  March  21,  1872. 

§  2063.  Theft,  etc.,  forfeits  wages.  Desertion  of  the  ship 
without  cause,  or  a  justifiable  discharge  by  the  master  dur- 
ing the  voyage,  for  misconduct,  or  a  theft  of  any  part  of 
the  cargo  or  appurtenances  of  the  ship,  or  a  willful  injury 
thereto  or  to  the  ship,  forfeits  all  wages  due  for  the  voy- 
age to  a  mate  or  seaman  thus  in  fault.    En.  March  21,  1872. 

§2064.     Seamen  cannot  ship  goods.     A  mate  or  seaman 


§§  20C5-2078  SERVICE    WITHOUT    EMPLOYMENT.  438 

may  not,  under  any  pretext,  ship  goods  on  his  own  account 
without  permission  from  the  master.     En.  March  2i,  1872. 
Cal.Rep.Cit.  113.  30. 

§2065.     Embezzlement    and    injuries.      (Repealed.)      En. 

March  21,  1872.     Rep.  1873-4,  247. 

§  2066.  Law  governing  seamen.  The  shipment  of  of- 
ficers and  seamen,  and  their  rights  and  duties,  are  lurther 
regulated  by  acts  of  congress.     En.  March  21,  1872. 


ARTICLE    VI. 

SHIP'S    MANAGERS. 

I  2070.     Manager,  what. 

§   2071.      Duties  of  manager. 

§   2072.      Compensation. 

§  2070.  Manager,  what.  The  general  agent  for  the  own- 
ers, in  respect  to  the  care  of  a  ship  and  freight,  is  called 
the  manager.  If  he  is  a  part  owner,  he  is  also  called  the 
managing  owner.     En.  March  21,  1872. 

Cal.Rep.Cit.   121,  569;    121,  570. 

§  2071.  Duties  of  manager.  Unless  btherwise  directed, 
it  is  the  duty  of  the  manager  of  a  ship  to  provide  for  the 
complete  seaworthiness  of  a  ship;  to  take  care  of  it  in  port; 
to  see  that  it  is  provided  with  necessary  papers,  with  a 
proper  master,  mate,  and  crew,  and  supplies  of  provisions 
and  stores.     En.  March  21,  1872. 

Cal.Rep.Cit.   121,   569. 

§  2072.  Compensation.  A  managing  owner  is  presumed 
to  have  no  right  to  compensation  for  his  own  services. 
En.  March  21,  1872. 

CHAPTER    III. 

SERVICE  WITHOUT  EMPLOYMENT. 

§   2078.     Voluntary   interference  with  property. 
§  2079.      Salvage. 

§2078.     Voluntary  interference  with  property.     One  who 

officiously,  and  without  the  consent  of  the  real  or  apparent 
owner  of  a  thing,  takes  it  into  his  possession  for  the  pur- 
pose of  rendering  a  service  about  it,  must  complete  such 


439  CARRIAGE    IN    GENERAL.  §§  2079,  2085 

service,  and  use  ordinary  care,  diligence,  and  reasonable 
skill  about  the  same.  He  is  not  entitled  to  any  compensa- 
tion for  his  service  or  expenses,  except  that  he  may  deduct 
actual  and  necessary  expenses  incurred  by  him  about  such 
service  from  any  profits  which  his  service  has  caused 
the  thing  to  acquire  for  its  owner,  and  must  account  to 
fhe  owner  for  the  residue.     En.  March  21,  1872. 

Employment  without  reward:     Ante,  sees.  1975  et  seq. 

Gratuitous  carriers:     Post,  sec.  2089. 

§  2079.  Salvage.  Any  person,  other  than  the  master, 
mate,  or  a  seaman  thereof,  who  rescues  a  ship,  her  appur- 
tenances, or  cargo,  from  danger,  is  entitled  to  a  reasonable 
compensation  therefor,  to  be  paid  out  of  the  property  saved. 
He  has  a  lien  for  such  claim,  which  is  regulated  by  the 
title  on  Liens;  but  no  claim  for  salvage,  as  such,  can  accrue 
against  any  vessel,  or  her  freight,  or  cargo,  in  favor  of  the 
owners,  officers,  or  crew  of  another  vessel  belonging  to 
the  same  owners;  but  the  actual  cost  at  the  time  of  the 
services  rendered  by  one  such  vessel  to  another,  when  in 
distress,  are  payable  through  a  general  average  contribu- 
tion on  the  property  saved.  En.  March  21,  1872.  Am'd. 
1873-4,  247. 

TITLE    VII. 

CARRIAGE. 

Chapter  I.  Carriage  in  General,  §§  2085-2090. 

II.  Carriage  of  Persons,  §§  2096-21*04. 

III.  Carriage  of  Property,  §§  2110-2155. 

rv.  Carriage  of  Messages,  §§2161-2162. 

V.  Common  Carriers,  §§  2168-2209. 

CHAPTER    I. 
CARRIAGE    IN    GENERAL. 

§  2085.  Contract  of  carriage. 

§   2086.  Different  kinds  of  carriers. 

§  2087.  Marine  and  inland  carriers,  what. 

§  2088.  Carriers  by  sea. 

§   2089.  Obligations  of  gratuitous  carriers, 

§   2090.  Obligations  of  gratuitous  carrier  who  has  begun  to  carry. 

§  2085.  Contract  of  carriage.  The  contract  of  carriage 
is    a   contract   for   the   conveyance    of   property,    persons. 


IS  2086-2090  CARRIAGE    IN    GENERAL.  410 

or  messages,  from  one  place  to  another.  En.  March  21, 
1872. 

Owner  is  liable  for  acts  of  driver:     Pol.  Code,  sec.  2936. 

Common  carriers  defined:     Post,  sec.  21C8. 

Carriage  of  property:    Post,  sees.  2110  et  seq. 

Carriage  of  persons:    Post,  sees.  2096  et  seq. 

Carriage  of  messages:  Post,  sees.  2161,  2162,  and  2207 
et  seq. 

§  2086.     Different  kinds  of  carriers.     Carriage  is  either: 

1.  Inland;  or, 

2.  Marine.     En.  March  21,  1872. 

§  2087.  Marine  and  inland  carriers,  wliat.  Carriers  upon 
the  ocean  and  upon  arms  of  the  sea  are  marine  carriers. 
All  others  are  inland  carriers.     En.  March  21,  1872. 

Inland  carriers  of  property,  rights  and  duties  of:  Post, 
sees.  2194  et  seq. 

Marine  carriers,  rights  and  duties  of:  Post,  sees.  2148 
et  seq.,  2197  et  seq. 

§  2088.  Carriers  by  sea.  Rights  and  duties  peculiar  to 
carriers  by  sea  are  defined  by  acts  of  congress.  En.  March 
21,  1872. 

See  post,  sees.  2197,  2198. 

Rights  and  duties  of  carriers  generally:  Post,  sees.  2180 
et  seq.,  2194  et  seq. 

General  average:    Post,  sees.  2148  et  seq. 

§  2089.  Obligations  of  gratuitous  carriers.  Carriers 
without  reward  are  subject  to  the  same  rules  as  employees 
without  reward,  except  so  far  as  is  otherwise  provided  by 
this  title.     En.  March  21,  1872. 

Employees  without  reward:    Ante,  sees.  1975  et  seq. 

Service  without  employment:    Ante,  sees.  2078  et  seq. 

§2090.  Obligations  of  gratuitous  carrier  who  has  begun 
to  carry.  A  carrier  without  reward,  who  has  begun  to 
perform  his  undertaking,  must  complete  it  in  like  manner 
as  if  he  had  received  a  reward,  unless  he  restores  the  per- 
son or  thing  carried  to  as  favorable  a  position  as  before  he 
commenced  the  carriage.     En.  March  21,  1872. 

Compare  with  sees.  1975,  1976,  ante. 


441  CARRIAGE    OP    PERSONS.  §§  209G-2101 

CHAPTER    II. 

CARRIAGE    OF    PERSONS. 

Article  I.      Gratuitous  Carriage,   §  2096. 

II.      Carriage  for  Reward,   §§  2100-2104. 

ARTICLE    I. 

GRATUITOUS    CARRIAGE    OP    PERSONS. 
§  2096.    Degree  of  care   required. 

§2096.  Degree  of  care  required.  A  carrier  of  persons 
without  reward  must  use  ordinary  care  and  diligence  for 
ther.   safe  carriage.     En.  March  21,  1872. 

Duty  of  gratuitous  employee,  generally:  Ante,  sees. 
1975,  1976. 

Carriers  of  persons,  generally:    Post,  sees.  2180  et  seq. 

ARTICLE    II. 

CARRIAGE    FOR    REWARD. 

§  2100.  General  duties  of  carrier. 

§   2101.  Vehicles. 

§  2102.  Not  to  overload  his  vehicle. 

§   2103.  Treatment   of  passengers. 

§  2104.  Rate  of  speed  and  delays. 

§  2100.  General  duties  of  carrier.  A  carrier  of  persons 
for  reward  must  use  the  utmost  care  and  diligence  for  their 
safe  carriage,  must  provide  everything  necessary  for  that 
purpose,  and  must  exercise  to  that  end  a  reasonable  degree 
of  skill.    En.  March  21,  1872. 

Cal.Rep.Cit.   63,  433;   89,  405;   137,  281. 

Intoxicated  driver,  duty  to  discharge:  See  Pol.  Code, 
sec.  2933. 

Driver  to  fasten  horses  while  standing:  See  Pol.  Code, 
sec.  2933. 

Negligence  of  driver,  liability  of  owner  for:  See  Pol. 
Code,  sec.  2936. 

§  2101.  Vehicles.  A  carrier  of  persons  for  reward  Is 
bound  to  provide  vehicles  safe  and  fit  for  the  purposes  to 
which  they  are  put,  and  is  not  excused  for  default  in  this 
respect  by  any  degree  of  care.    En.  March  21,  1872. 

Cal.ReD.Cit.  89.  406:   118.  653. 


§§  2102-2110  CARRIAGE    OF    PROPERTY.  442 

§  2102.  Not  to  overload  his  vehicle.  A  carrier  of  persons 
for  reward  must  not  overcrowd  or  overload  his  veliicle.  En. 
March  21,  1872. 

Railroad  corporations  to  furnish  accommodations:  Ante, 
sec.  483. 

§  2103.  Treatment  of  passengers.  A  carrier  of  persons 
for  reward  must  give  to  passengers  all  such  accommoda- 
tions as  are  usual  and  reasonable,  and  must  treat  them 
with  civility,  and  give  them  a  reasonable  degree  of  atten- 
tion.    En.  March  21,  1872. 

§  2104.  Rate  of  speed  and  delays.  A  carrier  of  persons 
for  reward  must  travel  at  a  reasonable  rate  of  speed,  and 
without  any  unreasonable  delay,  or  deviation  from  his 
proper  route.    En.  March  21,  1872. 


CHAPTER    III. 

CARRIAGE    OP    PROPERTY. 

Article  I.  General  Definitions,  §  2110. 

II.  Obligations  of  the  Carrier,   §§  2114-2122. 

III.  Bill  of  Lading,  §§  2126-2132. 

IV.  Freigtitage,  §§  2136-2144. 

V.     General  Average,  §§  214S-2155. 

ARTICLE    I. 

GENERAL    DEFINITIONS. 
§  2110.     Freight,  consignor,  etc.,  what. 

§2110.  Freight,  consignor,  etc.,  what.  Property  carried 
is  called  freight;  the  reward,  if  any,  to  be  paid  for  its 
carriage  is  called  freightage;  the  person  who  delivers  the 
freight  to  the  carrier  is  called  the  consignor;  and  the  per- 
son to  whom  it  is  to  be  delivered  is  called  the  consignee. 
En.  March  21,  1872. 

Freightage,  when  to  be  paid:    Post,  sees.  2136  et  seq. 

For  definition  of  bill  of  lading,  see  post,  sec.  2126. 


443  CARRIAGE    OF    PROPERTY.  §§  2114-2118 

ARTICLE    II. 

OBLIGATIONS    OF    THE    CARRIER. 

§  2114.  Care  and  diligence  required  of  carriers. 

§  2115.  Carrier  to  obey  directions. 

§  2116.  Conflict  of  orders. 

§   2117.  Stowage,  deviation,   etc. 

§  2118.  Delivery  of  freight. 

§  2119.  Place  of  delivery. 

§  2120.  Notice  when  freight  not  delivered. 

§   2121.  When  consignee  does  not  accept. 

§   2122.  When  consignee  cannot  be  found.      (Repealed.) 

§2114.  Care  and  diligence  required  of  carriers.  A 
carrier  of  property  for  reward  must  use  at  least  ordinary 
care  and  diligence  in  the  performance  of  all  his  duties.  A 
carrier  without  reward  must  use  at  least  slight  care  and 
diligence.    En.  March  21,  1872. 

Cal.Rep.Cit.  121,   568. 

§2115.  Carrier  to  obey  directions.  A  carrier  must  com- 
ply with  the  directions  of  the  consignor  or  consignee  to 
the  same  extent  that  an  employee  is  bound  to  comply  with 
those  of  his  employer.    En.  March  21,  1872. 

Employee's  duty  to  obey  employer:    Ante,  sec.  1981. 

§  2116.  Conflict  of  orders.  When  the  directions  of  a  con- 
signor and  consignee  are  conflicting,  the  carrier  must  com- 
ply with  those  of  the  consignor  in  respect  to  all  matters 
except  the  delivery  of  the  freight,  as  to  which  he  must  com- 
ply with  the  directions  of  the  consignee,  unless  the  con- 
signor has  specially  forbidden  the  carrier  to  receive  orders 
from  the  consignee  inconsistent  with  his  own.  En.  March 
21,  1872. 

§2117.  Stowage,  deviation,  etc.  A  marine  carrier  must 
not  stow  freight  upon  deck  during  the  voyage,  except  where 
it  is  usual  to  do  so,  nor  make  any  improper  deviation  from 
or  delay  in  the  voyage,  nor  do  any  other  unnecessary  act 
which  would  avoid  an  insiirance«^in  the  usual  lorm  upon 
the  freight.    En.  March  21,  1872. 

Cal.Rep.Cit.   125,   685. 

§2118.  Delivery  of  freight.  A  carrier  of  property  must 
deliver  it  to  the  consignee,  at  the  place  to  which  it  is  ad- 


§5  2119-2122  CARRIAGE    OF    PROPERTY.  444 

dressed,  in  the  manner  usual  at  that  place.     En.   March 
21,  1872. 

Cal.Rep.Cit.   94,   178. 

§2119.  Place  of  delivery.  If  there  is  no  usage  to  the 
contrary  at  the  place  of  delivery,  freight  must  be  delivered 
as  follows: 

1.  If  carried  upon  a  railway  owned  or  njanaged  by  the 
carrier,  it  may  be  delivered  at  the  station  nearest  to  the 
place  to  which  it  is  addressed; 

2.  If  carried  by  sea  from  a  foreign  country,  it  may  be 
delivered  at  the  wharf  where  the  ship  moors,  within  a  rea- 
sonable distance  from  the  place  of  address;  or,  if  there  is 
no  wharf,  on  board  a  lighter  alongside  the  ship;  or, 

3.  In  other  cases,  it  must  be  delivered  to  the  consignee 
or  his  agent,  personally,  if  either  can,  with  reasonable  dili- 
gence, be  found.    En.  March  21,  1872. 

Cal.Rep.Cit.   56,  486  ;   94,  178. 

Delivery  to  connecting  carrier:     Ante,  sec.  2201. 

§2120.  Notice  when  freight  not  delivered.  If,  for  any 
reason,  a  carrier  does  not  deliver  freight  to  the  consignee 
or  his  agent,  personally,  he  must  give  notice  to  tiie  con- 
signee of  its  arrival,  and  keep  the  same  in  safety  upon  his 
responsibility  as  a  warehouseman,  until  the  consignee  has 
had  a  reasonable  time  to  remove  it.  If  the  place  of  resi- 
dence or  business  of  the  consignee  be  unknown  to  the  car- 
rier, he  may  give  the  notice  by  letter  dropped  in  the  near- 
est postoffice.     En.  March  21,  1872.     Am'd.  1873-4,  247. 

Cal.Rep.Cit.      56,485;      56,486;      94,170;      94,177;      94,178; 
94,  179;    110,  356. 

§2121.  When  consignee  does  net  accept.  If  a  consignee 
does  not  accept  and  remove  freight  within  a  reasonable 
time  after  the  carrier  has  fulfilled  his  obligation  to  deliver, 
or  duly  offered  to  fulfill  the  same,  the  carrier  may  exoner- 
ate himself  from  further  liability  by  placing  the  freight  in 
a  suitable  warehouse, /on  storage,  on  account  of  the  con- 
signee, and  giving  notice  thereof  to  him.  En.  March  21, 
1872.     Am'd.  1873-4,  248. 

§2122.  When  consignee  cannot  be  found.  (Repealed.) 
En.  March  21,  1872.     Rep.  1873-4.  248. 


445  CARRIAGE    OF    PROPERTY.  §§  2126-2130 

ARTICLE    III. 

BILL    OF    LADING. 

§  2126.  Bill  of  lading,  what. 

§   2127.  Bill  of  lading  negotiable, 

g   21^8.  Same. 

§  2129.  Effect  of  bill  of  lading  on  rights,  etc.,  of  carrier. 

§   2130.  Bills  of  lading  to  be  given  to  consignor. 

§   2131.  Carrier  exonerated  by  delivery  ai,Lording  to  bill  of  lading. 

§  2132.  Carrier    may    demand    surrender    of    bill    of    lading    before 
delivery. 

§  2126.  Bill  of  lading,  what.  A  bill  of  lading  is  an  instru- 
ment in  writing,  signed  by  a  carrier  or  his  agent,  describ- 
ing the  freight  so  as  to  ^Identify  it,  stating  the  name  of  the 
consignor,  the  terms  of  the  contract  for  carriage,  and  agree- 
ing or  directing  that  the  freight  be  delivered  to  the  order 
or  assigns  of  a  specified  person  at  a  specified  place.  En. 
March  21,  1872. 

Cal.Rep.Cit.   61,   416. 

Issuing  fictitious  bill  of  lading:    Pen.  Code,  sec.  577. 

§2127.  Bill  of  lading  negotiable.  All  the  title  to  the 
freight  which  the  first  holder  of  a  bill  of  lading  had  when 
he  received  it,  passes  to  every  subsequent  indorsee  thereof 
in  good  faith  and  for  value,  in  the  ordinary  course  of  busi- 
ness, with  like  effect  and  in  like  manner  as  in  the  case  of  a 
bill  of  exchange.    En.  March  21,  1872. 

Cal.Rep.Cit.   61,   416;   110,   35S. 

§2128.  Same.  When  a  bill  of  lading  is  made  to  "bearer," 
or  in  equivalent  terms,  a  simple  transfer  thereof,  by  de- 
livery conveys  the  same  title  as  an  indorsement.  En. 
March  21,  1872. 

Cal.Rep.Cit.   61,  416. 

§  2129.  Effect  of  bill  of  lading  on  rights,  etc.,  cf  carrier. 
A  bill  of  lading  does  not  alter  the  rights  or  obligations  of 
the  carrier,  as  defined  in  this  chapter,  unless  it  is  plainly 
inconsistent  therewith.    En.  March  21,  1872. 

Cal.Rep.Cit.   61,   416. 

§2130.  Bills  of  lading  to  be  given  to  consignor.  A  car- 
rier must  subscribe  and  deliver  to  the  consignor,  on  de- 
mand, any  reasonable  number  of  bills  of  lading,  of  the 
same  tenor,  expressing  truly  the  original  contract  for  car- 


§§2131-2137  CARRIAGE    OF    PROPERTY.  44G 

riage;  and  if  he  refuses  to  do  so,  the  consignor  may  take 
the  freight  from  him,  and  recover  from  him,  besides,  all 
damage  thereby  occasioned.     En.  March  21,  1872. 
Cal.Rep.Cit.   61,   416. 

Duplicate  receipts  must  be  marked  "duplicate":  Pen. 
Code,  sec.  580.  , 

§2131.  Carrier  exonerated  by  delivery  according  to  bill 
of  lading.  A  carrier  is  exonerated  from  liability  for  freight 
by  delivery  thereof,  in  good  faith,  to  any  holder  of  a  bill 
of  lading  therefor,  properly  indorsed,  or  made  in  favor  of 
the  bearer.     En.  March  21,  1872. 

Cal.Rep.Cit.   61,  416;    110,  357, 

See   ante,  sec.  2128.  * 

§  2132.  Carrier  may  demand  surrender  of  bill  of  lading 
before  delivery.  When  a  carrier  has  given  a  bill  of  lading, 
or  other  instrument  substantially  equivalent  thereto,  he 
may  require  its  surrender,  or  a  reasonable  indemnity 
against  claims  thereon,  before  delivering  the  freight.  En. 
March  21,  1872. 

Cal.Rep.Cit.   61,  416. 

ARTICLE    IV. 

FREIGHTAGE. 

§  2136.  When  freightage  is  to  be  paid. 

§  2137.  Consignor,   when   liable  for  freightage. 

§   2138.  Consignee,  when  liable. 

§   2139.  Natural  increase  of  freight. 

§  2140.  Apportionment  by   contract. 

§   2141.  Same. 

§  2142.  Apportionment  according  to  distance. 

§   2143.  Freight  carried  further  than  agreed,  etc. 

§  2144.  Carrier's  lien  for  freightage. 

§2136.  When  freigiitage  is  to  be  paid.  A  carrier  may 
require  his  freightage  to  be  paid  upon  his  receiving  the 
freight;  but  if  he  does  not  demand  it  then,  he  cannot  until 
he  is  ready  to  deliver  the  freight  to  the  consignee.  En. 
March  21,  1872. 

Freightage  defined:    Ante,  sec.  2110. 

Freight  defined:    Ante,  sec.  2110. 

§  2137.  Consignor,  when  liable  for  freightage.  The  con- 
signor of  freight  is  presumed  to  be  liable  for  the  freightage. 


447  CARRIAGE    OF    PROPERTY.  §§  2138-2143 

• 

but  if  the  contract  between  him  and  the  carrier  provides 
that  the  consignee  shall  pay  it,  and  the  carrier  allows  the 
consignee  to  take  the  freight,  he  cannot  afterwards  re- 
cover the  freightage  from  the  consignor.     En.  March  21, 

1872. 

§  2138.  Consignee,  when  liable.  The  consignee  of 
freight  is  liable  for  the  freightage,  if  he  accepts  the  freight 
with  notice  of  the  intention  of  the  consignor  that  he  should 
pay  it.    En.  March  21,  1872. 

§  2139.  Natural  increase  of  freight.  No  freightage  can 
be  charged  upon  the  natural  increase  of  freight.  En.  March 
21,  1872. 

§  2140.  Apportionment  by  contract.  If  freightage  is  ap- 
portioned by  a  bill  of  lading  or  other  contract  made  be- 
tween a  consignor  and  carrier,  the  carrier  is  entitled  to 
payment,  according  to  the  apportionment,  for  so  much  as 
he  delivers.    En.  March  21,  1872. 

§  2141.  Same.  If  a  part  of  the  freight  is  accepted  by  a 
consignee,  without  a  specific  objection  that  the  rest  is  not 
delivered,  the  freightage  must  be  apportioned  and  paid  as 
to  that  part,  though  not  apportioned  in  the  original  con- 
tract.   En.  March  21,  1872. 

§2142.  Apportionment  according  to  distance.  If  a  con- 
signee voluntarily  receives  freight  at  a  place  short  of  the 
one  appointed  for  delivery,  the  carrier  is  entitled  to  a  just 
proportion  of  the  freightage,  according  to  distance.  If  the" 
carrier,  being  ready  and  willing,  offer  to  complete  the 
transit,  he  is  entitled  to  the  full  freightage.  If  he  does  not 
thus  offer  completion,  and  the  consignee  receives  the 
freight  only  from  necessity,  the  carrier  is  not  entitled  to 
any  freightage.    En.  March  21,  1872. 

§2143.  Freight  carried  further  than  agreed,  etc.  If 
freight  is  carried  further,  or  more  expeditiously,  than  was 
agreed  upon  by  the  parties,  the  carrier  is  not  entitled  to 
additional  compensation,  and  cannot  refuse  to  deliver  it, 
on  the  demand  of  the  consignee,  at  the  place  and  time  of 
its  arrival.    En.  March  21,  1872. 


§§  2144-2152  CARRIAGE    OF    PROPERTY.  448 

§  2144.  Carrier's  lien  for  freightage.  A  carrier  has  a 
lieu  for  freightage,  which  is  regulated  by  the  title  oa  liens. 
En.  March  21,  1872. 

Liens  generally:     See  post,  sees.  2872  et  seq. 
Lien  on  passenger's  luggage:    Post,  sec.  219L 


ARTICLE    V. 

GENERAL  AVERAGE. 

§  2148.  Jettison  and  general  average,  what. 

§   2149.  Order   of  jettison. 

§   2150.  By  whom  made. 

§   2151.  Loss,  how  boiue. 

§   2152.  General   average   loss,   how   adjusted. 

§   2153.  Values,   how  ascertained. 

§   2154.  Things   stowed   on   deuK. 

§   2155.  Application  ol;  the  foregoing  rules. 

§  2148.  Jettison  and  general  average,  what.  A  carrier 
by  water  may,  when  in  case  of  extreme  peril  it  is  neces- 
sary for  the  safety  of  the  ship  or  cargo,  throw  overboard, 
or  otherwise  sacritice,  any  or  all  the  cargo  or  appurtenances 
of  the  ship.  Throwing  property  overboard  for  such  pur- 
pose is  called  jettison,  and  the  loss  incurred  thereby  is 
called  a  general  average  loss.     En.  March  21,  1872. 

§  2149.  Order  of  jettison.  A  jettison  must  begin  with 
the  most  bulky  and  least  valuable  articles,  so  far  as  pos- 
sible.   En.  March  21,  1872. 

§  2150.  By  whom  made.  A  jettison  can  be  made  only  by 
authority  of  the  master  of  the  ship,  except  in  case  of  his 
disability,  or  of  an  overruling  necessity,  when  it  may  be 
made  by  any  other  person.    En.  March  21,  1872. 

§2151.  Loss,  how  borne.  The  loss  incurred  by  a  jet- 
tison, when  lawfully  made,  must  be  borne  in  due  propor- 
tion by  all  that  part  of  the  ship,  appurtenances,  freightage, 
and  cargo  for  the  benefit  of  which  the  sacrifice  is  made,  as 
well  as  by  the  owner  of  the  thing  sacrificed.  En.  March 
21,  1872. 

§  2152.  General  average  loss,  how  adjusted.  The  pro- 
portions in  which  a  general  average  loss  is  to  be  borne 
must  be  ascertained  by  an  adjustment,  in  which  the  owner 


449  CARRIAGE    OF    MESSAGES.  §§  2153-2161 

of  each  separate  interest  is  to  be  charged  with  such  pro- 
portion of  the  value  of  the  thing  lost  as  the  value  of  his 
part  of  the  property  affected  bears  to  the  value  of  the 
whole.  But  an  adjustment  made  at  the  end  of  the  voyage, 
if  valid  there,  is  valid  everywhere.    En.  March  21,  1872. 

§  2153.  Values,  how  ascertained.  In  estimating  values 
for  the  purpose  of  a  general  average,  the  ship  and  appur- 
tenances must  be  valued  as  at  the  end  of  the  voyage,  the 
freightage  at  one  half  the  amount  due  on  delivery,  and 
the  cargo  as  at  the  time  and  place  of  its  discharge;  adding, 
in  each  case,  the  amount  made  good  by  contribution.  En. 
March  21,  1872. 

§2154.  Things  stowed  on  deck.  The  owner  of  things 
stowed  on  deck,  in  case  of  their  jettison,  is  entitled  to  the 
benefit  of  a  general  average  contribution  only  in  case  it  is 
usual  to  stow  such  things  on  deck  upon  such  a  voyage.  En. 
March  21,  1872. 

§2155.  Application  of  the  foregoing  rules.  The  rules 
herein  stated  concerning  jettison  are  equally  applicable  to 
every  other  voluntary  sacrifice  of  property  on  a  ship,  or 
expense  necessarily  incurred,  for  the  preservation  of  the 
ship  and  cargo  from  extraordinary  perils.  En.  March  21, 
1872. 

CHAPTER    IV. 

CARRIAGE     OF    MESSAGES. 

§  2161.      Obligations  of  carrier  of  messages. 
§  2162.      Degree  of  care  and  diligence  required. 

§  2161.  Obligations  of  carrier  of  messages.  A  carrier  of 
messages  for  reward,  other  than  by  telegraph,  must  de- 
liver them  at  the  place  to  which  they  are  addressed,  or  to 
the  person  for  whom  tbey  are  intended.  Such  carrier,  by 
telegraph,  must  deliver  them  at  such  place  and  to  such  per- 
son, provided  the  place  of  address,  or  the  person  for  whom 
they  are  intended,  is  within  a  distance  of  two  miles  from 
the  main  office  of  the  carrier  in  the  city  or  town  to  which 
the  messages  are  transmitted,  and  the  carrier  is  not  re- 
quired, in  making  the  delivery,  to  pay  on  his  route  toll  or 
ferriage,  but  for  any  distance  beyond  one  mile  from  such 


|§  2162,  2168 


COMMON     CARRIERS. 


450 


office,  compensation  may  be  charged  for  a  messenger  em- 
ployed by  the  carrier.  En.  March  21,  1872.  Am'a.  1673-4, 
248. 

Cal.Rep.Cit.   66,  586;   123,  430. 

Neglect  or  postponement  in  delivery:  See  Pen.  Code, 
sec.  638. 

Order  of  transmitting  messages:    Post,  sec.  2208. 

Refusal  to  deliver  message,  penalty:    Post,  sec.  2209. 

Carrier  of  telegraphic  messages:  See  post,  sees.  2207 
et  seq. 

§2162.  Degree  of  care  and  diligence  required.  A  carrier 
of  messages  for  reward  must  use  great  care  and  diligence 
in  the  transmission  and  delivery  of  messages.  En.  March 
21,  1872.     Am'd.  1873-4,  249. 

Cal.Rep.Cit.   66,  581 ;   66,  586  ;   123,  430  ;   130,  660. 


CHAPTER    V. 

COMMON    CARRIERS. 

Article  I.  Common  Carriers  in    General,    §§  2168-2177. 

II.  Common  Carriers  of  Persons,   §§  2180-2191. 

III.  Common  Carriers  of  Property,  §§  2194-2204. 

IV.  Common  Carriers  of  Messages,   §§  2207-2209. 


ARTICLE    I. 

COMMON    CARRIERS    IN    GENERAL. 

Common  carrier,  what. 

Obligation  to  accept  freight. 

Obligation  not  to  give  preference. 

What  preferences  he  must  give. 

Starting. 

Compensation. 

Obligations  of  carrier  altered  only  by  agreement. 

Certain  agreements  void. 

Effect  of  written  contract. 

Loss  of  valuable  letters. 


§  2168. 
§  2169. 
§  2170. 
§  2171. 
§  2172. 
§  2173. 
§  2174. 
§  2175. 
§  2176. 
§  2177. 

§  2168.  Common  carrier,  what.  Every  one  who  offers 
to  the  public  to  carry  persons,  property,  or  messages,  ex- 
cepting only  telegraphic  messages,  is  a  common  carrier  of 
whatever  he  thus  offers  to  carry.  En.  March  21,  1872. 
Am'd.  1873-4,  249. 

Cal.Rep.Cit.   66,  581;    66,  586. 

Carriage  in  general:    Ante,  sees.  2085  et  seq. 
Inland  and  marine  carriers  defined:    Ante,  sec.  2087. 


451  COMMON    CARRIERS.  §§  2169-2172 

Rights  and  liabilities  of  carriers:  See  post,  under  "Car- 
riers of  Persons  and  Carriers  of  Property,"  sees.  2180  et 
seq.  and  2194  et  seq.;  and  as  to  rights  and  duties  of  car- 
riers by  sea,  see  sec.  2088,  ante. 

§2169.  Obligation  to  accept  freight.  A  common  carrier 
must,  if  able  to  do  so,  accept  and  carry  whatever  is  offered 
to  him,  at  a  reasonable  time  and  place,  of  a  kind  that  he 
undertakes  or  is  accustomed  to  carry.    En.  March  21,  1872. 

Cal.Rep.Cit.   70,  178;   81,  298. 

Refusal  by  railroad  to  carry  passengers:    Sec.  482,  ante. 

Want  of  room:    See  post,  sec.  2185. 

§2170.  Obligation  not  to  give  preference.  A  common 
carrier  must  not  give  preference,  in  time,  price,  or  other- 
wise, to  one  person  over  another.  Every  common  carrier 
of  passengers  by  railroad,  or  by  vessel  plying  upon  waters 
lying  wholly  within  this  state,  shall  establish  a  schedule 
time  for  the  starting  of  trains  or  vessels  from  their  re- 
spective stations  or  wharves,  of  which  public  notice  shall 
be  given,  and  shall,  weather  permitting,  except  in  case  of 
accident  or  detention  caused  by  connecting  lines,  start 
their  said  trains  or  vessel  at  or  within  ten  minutes  after 
the  schedule  time  so  established  and  notice  given,  under  a 
penalty  of  two  hundred  and  fifty  dollars  for  each  neglect 
so  to  do,  to  be  recovered  by  action  before  any  court  of 
competent  jurisdiction,  upon  complaint  filed  by  tne  district 
attorney  of  the  county  in  the  name  of  the  people,  and  paid 
into  the  common  school  fund  of  the  said  county.  En.  March 
21,  1872.     Am'd.  1880,  2. 

Cal.Rep.Cit.   70,   178. 

Time-table. — For  railroads,  see  ante,  sec.  481,  and  gen- 
erally, infra,  sec.  2172. 

§2171.  What  preferences  he  must  give.  A  common  car- 
rier must  always  give  a  preference  in  time,  and  may  give 
a  preference  in  price,  to  the  United  States  and  to  this 
state.     En.  March  21,  1872. 

§  2172.  Starting.  A  common  carrier  must  start  at  such 
time  and  place  as  he  announces  to  the  public,  unless  de- 
tained by  accident  or  the  elements,  or  in  order  to  connect 


8§  2173-2176  COMMON    CARRIERS.  452 

with  carriers  on  other  lines  of  travel.    En.  March  21,  1872. 
Am'd.  1S73-4,  249. 

See  sec.  2170,  ante,  and  sec.  2196,  post. 

§  2173.     Compensation,    A  common  carrier  is  entitled  to 
a  reasonable  compensation  and   no  more,   which  he  may 
require  to  be  paid  in  advance.     If  payment  thereof  is  re- 
fused, he  may  refuse  to  carry.    En.  March  21,  1872. 
Lien  for  freight:    Ante,  sec.  2144, 
Lien  on  luggage  of  passenger:    Post,  sec.  2191. 

§2174.  Obligations  of  carrier  altered  only  by  agreement. 
The  obligations  of  a  common  carrier  cannot  be  limited  by 
general  notice  on  his  part,  but  may  be  limited  by  special 
contract.    En.  March  21,  1872.    Am'd.  1873-4,  249, 

Cal.Rep.Cit.  120,  158;   120,  159. 

Compare  with  sec.  2176,  infra,  and  sec.  2200,  post. 

Limiting  liability  by  special  contract:    Post,  sec.  2175. 

§2175.  Certain  agreements  void.  A  common  carrier 
cannot  be  exonerated,  by  any  agreement  made  in  antici- 
pation thereof,  from  liability  for  the  gross  negligence, 
fraud,  or  willful  wrong  of  himself  or  his  servants.  hiU. 
March  21,  1872. 

Cal.Rep.Cit.   118,  689;   118,  690;   118,  691;   118,  695;   120,  158; 
131,  589. 

§  2176.  Effect  of  written  contract.  A  passenger,  con- 
signor, or  consignee,  by  accepting  a  ticket,  bill  of  lading, 
or  written  contract  for  carriage,  with  a  knowledge  of  its 
terms,  assents  to  the  rate  of  hire,  the  time,  place,  and  man- 
ner of  delivery  therein  stated;  and  also  to  the  limitation 
stated  therein  upon  the  amount  of  the  carrier's  liability  in 
case  property  carried  in  packages,  trunks,  or  boxes,  is  lost 
or  injured,  when  the  value  of  such  property  is  not  named; 
and  also  to  the  limitation  stated  therein  to  the  carrier's 
liability  for  loss  or  injury  to  live  animals  carried.  But  his 
assent  to  any  other  modification  of  the  carrier's  obligations 
contained  in  such  instrument  can  be  manifested  only  by 
his  signature  to  the  same.  En.  March  21,  1872.  Am'd. 
1873-4,  249. 

Cal.Rep.Cit.      66,  299;    101,  195;   113,  334;   118,  689;   118,  691; 
131,  586;   131,  587;    131,  589. 


453  COMMON    CARRIERS.  5§  2177-2181 

§  2177.  Loss  of  valuable  letters.  A  common  carrier  is 
not  responsible  for  loss  or  miscarriage  of  a  letter,  or  pack- 
age having  the  form  of  a  letter,  containing  money  or  notes, 
bills  of  exchange,  or  other  papers  of  value,  unless  he  be 
informed  at  the  time  of  its  receipt  of  the  value  of  its  con- 
tents.    En.  Stats.  1873-4,  250. 

Messages,  carriage  of:    See  sec.  2161,  ante. 


ARTICLE    II. 

COMMON    CARRIERS    OF    PERSONS. 

§  21S0.  Obligation   to   carry   luggage. 

I  21S1.  Luggage,  what.     Bicycles. 

§  2182.  Liability  for  luggage. 

§  2183.  Luggage,    how   carried   and    delivered. 

§  2184.  Obligation   to   provide   vehicles. 

§  2185.  Seats   for   passengers. 

5  2186.  Regulations   for  conduct  of  business. 

§  2187.  Fare,   when  payable. 

§  2188.  Ejection  of  passengers. 

§  2189.  Passenger  who  has  not  paid  fare. 

§  2190.  Fare  not  payable  after  ejection. 

S  2191.  Carrier's  lien. 

§2180.  Obligation  to  carry  luggage.  A  common  carrier 
of  persons,  unless  his  vehicle  is  fitted  for  the  reception  of 
persons  exclusively,  must  receive  and  carry  a  reasonable 
amount  of  luggage  for  each  passenger  without  charge,  ex- 
cept for  an  excess  of  weight  over  one  hundred  pounds  to  a 
passenger:  provided,  that  if  such  carrier  be  a  proprietor 
of  a  stage  line,  he  may  not  receive  and  carry  for  each  pas- 
senger by  such  stage  line,  without  charge,  more  than  sixty 
pounds  of  luggage.     En.  March  21,  1872.     Am'd.  1877-8,  87. 

Cal.Rep.Cit.   70,   172;    85,   330. 

§2181.  Luggage,  what.  Bicycles.  Luggage  may  consist 
of  whatever  the  passenger  takes  with  him  for  his  personal 
use  and  convenience  according  to  the  habits  or  wants  of 
the  particular  class  to  which  he  belongs,  either  with  refer- 
ence to  the  immediate  necessities,  or  to  the  ultimate  pur- 
pose of  the  journey.  No  crate,  cover,  or  other  protection 
shall  be  required  for  any  bicycle  carried  as  luggage,  but  no 
passenger  shall  be  entitled  to  carry  as  luggage  more  than 
one  bicycle.    En.  March  21,  1872.    Am'd.  1897,  4. 

Cal.Rep.Cit.   70,  173;    85,  330. 


{S  2182-2186  COMMON    CARRIERS.  454 

§2182.  Liability  for  luggage.  The  liability  of  a  carrier 
for  luggage  received  by  him  with  a  passenger  is  the  same 
as  that  of  a  common  carrier  of  property.  En.  March  21, 
1872. 

Cal.Rep.CIt.  70,  173. 

See  sec.  2194,  post. 

Lien  on  baggage  for  fare:    See  sees.  2191,  3051,  post. 

§2183.  Luggage,  how  carried  and  delivered.  A  com- 
mon carrier  must  deliver  every  passenger's  luggage, 
whether  within  the  prescribed  weight  or  not,  immediately 
upon  the  arrival  of  the  passenger  at  his  destination;  and, 
unless  the  vehicle  would  be  overcrowded  or  overloaded 
thereby,  must  carry  it  on  the  same  vehicle  by  which  he 
carries  the  passenger  to  whom  it  belonged,  except  that 
where  luggage  is  transported  by  rail,  it  must  be  checked 
and  carried  in  a  regular  baggage  car;  and  whenever  pas- 
sengers neglect  or  refuse  to  have  their  luggage  so  checked 
and  transported,  it  is  carried  at  their  risk.  En.  March  21, 
1872.     Am'd.  1873-4,  250. 

Cal.Rep.Cit.   70,   173. 

Duty  to  furnish  check:    See  sec.  479,  ante. 

§2184.  Obligation  to  provide  vehicles.  A  common  car- 
rier of  persons  must  provide  a  sufficient  number  of  vehicles 
to  accommodate  all  the  passengers  who  can  be  reasonably 
expected  to  require  carriage  at  any  one  time.  En.  March 
21,  1872. 

See  next  section. 

§  2185.  Seats  for  passengers.  A  common  carrier  of  per- 
sons must  provide  every  passenger  with  a  seat.  He  must 
not  overload  his  vehicle  by  receiving  and  carrying  more 
passengers  than  its  rated  capacity  allows.  En.  March  21, 
1872. 

Compare  with  sec.  483,  ante. 

Duty  to  carry  all  who  apply:    See  sec.  2169. 

§2186.  Regulations  for  conduct  of  business.  A  common 
carrier  of  persons  may  make  rules  for  the  conduct  of  his 
business,  and  may  require  passengers  to  conform  to  them, 
if  they  are  lawful,  public,  uniform  in  their  application,  and 
reasonable.     En.  March  21,  1872. 

Cal.Rep.CIt.  97,  464. 


455  COMMON    CARRIERS.  §§  2187-2191 

Rules  and  regulations:  See  ante,  sec.  465,  subds.  10,  11, 
and  sec.  484. 

§  2187.  Fare,  when  payable.  A  common  carrier  may  de- 
mand the  fare  of  passengers,  either  at  starting  or  at  any 
subsequent  time.    En.  March  21,  1872. 

Cal.Rep.Cit.   81,  298;   97,  464.' 

Penalty  for  overcharge:    Pen.  Code,  sec.  525. 

§  2188.  Ejection  of  passengers.  A  passenger  who  re- 
fuses to  pay  his  fare  or  to  conform  to  any  lawful  regula- 
tion of  the  carrier,  may  be  ejected  from  the  vehicle  by  the 
carrier.  But  this  must  be  done  with  as  little  violence  as 
possible,  and  at  any  usual  stopping-place  or  near  some 
dwelling-house.    En.  March  21,  1872. 

Cal.Rep.Cit.   81,  299;   97,  463. 

Ejecting  passenger  for  not  paying  fare:    Sec.  487. 

§  2189.  Passenger  who  has  not  paid  fare.  A  passenger 
upon  a  railroad  train  who  has  not  paid  his  fare  oefore  en- 
tering the  train,  if  he  has  been  afforded  an  opportunity  to 
do  so,  must,  upon  demand,  pay  ten  per  cent  in  addition  to 
the  regular  rate.    En.  March  21,  1872. 

Ejecting  passenger  for  nonpayment  of  fare:  Ante,  sec. 
487. 

§  2190.  Fare  not  payable  after  ejection.  After  having 
ejected  a  passenger,  a  carrier  has  no  right  to  require  the 
payment  of  any  part  of  his  fare.    En.  March  21,  1872. 

§2191.  Carrier's  lien.  A  common  carrier  has  a  lien  upon 
the  luggage  of  a  passenger  for  the  payment  of  such  fare 
as  he  is  entitled  to  from  him.  This  lien  is  regulated  by 
the  title  on  Liens.    En.  March  21,  1872. 

See  general  principle  stated  in  regard  to  lien  for  work 
and  labor  performed  about  personalty,  post,  sec.  3051. 

Lien  for  freight:    Ante,  sec,  2144. 


21&4-2107  COMMON     CAnRIERS.  456 


ARTICLE    III. 

COMMON    CARRIERS    OF     PROPERTY. 

§  2194.  Liability  of  inland  carriers  for  loss. 

§   2195.  Wlien  exemptions  do  not  apply, 

§  2196.  Liability   for   delay.  , 

§   2197.  Liability  of  marine  carries. 

§   2198.  Same. 

§   2199.  Perils  of  sea,   what. 

§   2200.  Consignor  of  valuables  to  declare  their  nature. 

S   2201.  Delivery  of  freight  beyond   usual   route. 

§  2202.  Proof  to   be   given   in   case   of  loss. 

§   2203.  Carrier's   services,   other   than   carriage   and   delivery. 

§  2204.  Sale  of  perishable  property   for  freight. 

§  2194.  Liability  of  inland  carriers  for  less.  Unless  the 
consignor  accompanies  the  freight  and  retains  exclusive 
control  thereof,  an  inland  common  carrier  of  property  is 
liable,  from  the  time  that  he  accepts  until  he  relieves 
himself  from  liability  pursuant  to  sections  2118  to  2122,  for 
the  loss  or  injury  thereof  from  any  cause  whatever,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action,  of  the  property  itself; 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of 
this  state; 

3.  The  act  of  the  law;   or, 

4.  Any  irresistible  superhuman  cause.  En.  March  21,  1872. 
Cal.Rep.Cit.   101,  194. 

Inland  carrier  defined:    See   ante,  sec.  2087. 

Liability  as  warehouseman:    See    ante,  sec.  2120. 

Termination  of  liability:     See    ante,  sees.  2118-2121. 

Selling  perishable  articles:    See    infra,  sec.  2204. 

§2195.  When  exemptions  do  not  apply.  A  commou 
carrier  is  liable,  even  in  the  cases  excepted  by  the  last 
section,  if  his  ordinary  negligence  exposes  the  property  to 
the  cause  of  the  loss.    En.  March  21,  1872. 

§2196.  Liability  for  delay.  A  common  carrier  is  liable 
for  delay  only  when  it  is  caused  by  his  want  of  ordinary 
care  and  diligence.    En.  March  21,  1872,    Am'd.  1873-4,  251. 

Cal.Rep.Cit.   101,   193. 

§2197.  Liability  of  marine  carriers.  A  marine  carrier 
is  liable  in  like  manner  as  an  inland  carrier,  except  for  loss 
or  injury  caused  by  the  perils  of  the  sea  or  fire.  En,  March 
21,  1872, 


457  COMMON    CARRIERS.  §§  2198-2202 

§  2198.  Same.  The  liability  of  a  common  carrier  by  sea 
is  further  regulated  by  acts  of  congress.  En.  March  21, 
1872. 

See,  also,  ante,  sec.  2088. 

§2199.     Perils  of  sea,  what.     Perils  of  the  sea  are  from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  rapids; 

3.  Other  obstacles,  though  of  human  origin; 

4.  Changes  of  climate; 

5.  The  confinement  necessary  at  sea; 

6.  Animals  peculiar  to  the  sea;  and, 

7.  All  other  dangers  peculiar  to  the  sea.  En.  March  21, 
1872. 

Cal.Rep.Cit.   76,  147  ;    76,  148. 

§2200.  Consignor  of  valuables  to  declare  their  nature. 
A  common  carrier  of  gold,  silver,  platina,  or  precious  stones, 
or  of  imitations  thereof,  in  a  manufactured  or  unmanu- 
factured state;  of  timepieces  of  any  description;  of  nego- 
tiable paper  or  other  valuable  writings;  of  pictures,  glass, 
or  chinaware;  of  statuary,  silk,  or  laces;  or  of  plated  ware 
of  any  kind,  is  not  liable  for  more  than  fifty  dollars  upon 
the  loss  or  injury  of  any  one  package  of  such  articles, 
unless  he  has  notice  upon  his  receipt  thereof,  by  mark  upon 
the  package  or  otherwise,  of  the  nature  of  the  freight;  nor 
is  such  carrier  liable  upon  any  package  carried  for  more 
tban  the  value  of  the  articles  named  in  the  receipt  or  the 
bill  of  lading.     En.  March  21,  1872.     Am'd.  1873-4,  251. 

Cal.Rep.Cit.   84,  313;   84,  314;    118,  689. 

§2201.  Delivery  of  freight  beyond  usual  route.  If  a 
common  carrier  accepts  freight  for  a  place  beyond  his  usual 
route,  he  must,  unless  he  stipulates  otherwise,  deliver  it 
at  the  end  of  his  route  in  that  direction  to  some  other 
competent  carrier  carrying  to  the  place  of  address,  or  con- 
nected with  those  who  thus  carry,  and  his  liability  ceases 
upon  making  such  delivery.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,  463;   101,  195;   118,  651. 

Delivery  in  general:     See    ante,  sees.  2118,  2119. 

§  2202.  Proof  to  be  given  in  case  of  loss.  If  freight  ad- 
dressed to  a  place  beyond  the  usual  route  of  the  common 

Civ.   Code— 20 


§§  2203-2207  COMMON    CARRIERS.  458 

carrier  who  first  received  it  is  lost  or  injured,  he  must, 
within  a  reasonable  time  after  demand,  give  satisfactory 
proof  to  the  consignor  that  the  loss  or  injury  did  not  occur 
while  it  was  in  his  charge,  or  he  will  be  himself  liable 
therefor.     En.  March  21,  1872. 

§  2203.  Carrier's  services,  other  than  carriage  and  de- 
livery. In  respect  to  any  service  rendered  by  a  common 
carrier  about  freight,  other  than  its  carriage  and  delivery, 
his  rights  and  obligations  are  defined  by  the  titles  on  De- 
posit and  Service.     En.  March  21,  1S72. 

Deposit:    See,  ante,  sees.  1S13  et  seq. 

Service:    See,  ante,  sees.  19C5  et  sey. 

§  2204.  Sale  of  perishable  property  for  freight.  If,  from 
any  cause  other  than  want  of  ordinary  care  and  diligence 
on  his  part,  a  common  carrier  is  unable  to  deliver  perish- 
able property  transported  by  him,  and  collect  his  charges 
thereon,  he  may  cause  the  property  to  be  sold  in  open 
market,  to  satisfy  his  lien  for  freightage.  En.  Stats. 
1873-4,  251. 

Penalty  for  overcharges:    Pen.  Code,  sec.  525. 

ARTICLE    IV. 

COMMON    CARRIERS    OP    MESSAGES. 

S  2207.     Order  of  transmission  of  telegraphic  messages. 

I  2208.      Order  in  other  cases. 

I  2209.     Damages   when  message   is  refused  or  postponed. 

§  2207.  Order  of  transmission  of  telegraphic  messages. 
A  carrier  of  messages  by  telegi'aph  must.  If  it  is  practicable, 
transmit  every  such  message  immediately  upon  its  receipt. 
But  if  this  is  not  practicable,  and  several  messages  ac- 
cumulate upon  his  hands,  he  must  transmit  them  in  the 
following  order: 

1.  Messages  from  public  agents  of  the  United  States  or 
of  this  state,  on  public  business; 

2.  Messages  intended  in  good  faith  for  immediate  publi- 
cation in  newspapers,  and  not  for  any  secret  use; 

3.  Messages  giving  information  relating  to  the  sickness 
or  death  of  any  person; 

4.  Other  messages  in  the  order  in  which  they  were  re- 
ceived.    En.  March  21,  1872. 


459  TRUSTS    IN    GENERAL.  §§   220S.  2209 

Carriers  of  messages:    See   ante,  sees.  2161,  2162. 
Neglect  or  postponement  in  transmission:    See  Pen.  Code, 
sec.  638. 

§  2208.  Order  in  other  cases.  A  common  carrier  of 
messages,  otherwise  than  by  telegraph,  must  transmit  mes- 
sages in  the  order  in  which  he  receives  them,  except 
messages  from  agents  of  the  United  States  or  of  this  state, 
on  public  business,  to  which  he  must  always  give  priority. 
But  he  may  fix  upon  certain  times  for  the  simultaneous 
transmission  of  messages  previously  received.  En.  March 
21,  1872. 

Delivery  of  messages:    See    ante,  sec.  2161. 

§  2209.  Damages  when  message  is  refused  or  postponed. 
Every  person  whose  message  is  refused  or  postponed,  con- 
trary to  the  provisions  of  this  chapter,  is  entitled  to  recover 
from  the  carrier  his  actual  damages,  and  fifty  dollars  in 
addition  thereto.     En.  March  21,  1872. 


TITLE    VIII. 

TRUST. 

Chapter  I.     Trusts  in  General,  §§  2215-2244. 

II.     Trusts  for  the  Benefit  of  Third  Persons,  §§  2250 
2289. 

CHAPTER    I. 

TRUSTS     IN     GENERAL. 

Article  I.      Nature  and  Creation  of  a  Trust.  §S  2215-2224. 
II.      Obligations  of  Trustees,    §§  2228-2239. 
III.      Obligations   of   Third   Persons,    §§  2243-2244. 

ARTICLE    I.  • 

NATURE  AND  CREATION  OP  A  TRUST. 

§  2215.  Trusts  classified. 

§  2216.  Voluntary  trust,  wbat. 

i  2217.  Involuntary  trust,   what. 

§  2218.  Parties  to  the  contract. 

§  2219.  What  constitutes  one  a  trustee. 

§  2220.  For  what  purpose  a  trust  may  he  created. 

§  2221.  Voluntary  trust,   how  created  as  to  trustor. 

I  2222.  How  created  as  to  trustee. 

§  2223.  Involuntary   trustee,   who    is. 

§  2224.  Involuntary  trust  resulting  from  fraud,  mistake,  etc. 


55  2215-21:21  TRUSTS    IN    GENERAL.  460 

§  2215.     Trusts  classified.     A  trust  is  either: 

1.  Voluntary;  or, 

2.  Involuntary.     En.  March  21,  1872. 
Cal.Rep.Cit.   5S,  483;   132,  2U. 

§2216.  Voluntary  trust,  what.  A  voluntary  trust  Is  an 
obligation  arising  out  of  a  personal  confidence  reposed  in, 
and  voluntarily  accepted  by,  one  for  the  benefit  of  another. 
En.  March  21,  1872. 

Cal.Rep.Cit.   85,  445. 

§  2217.  Involuntary  trust,  what.  An  involuntary  trust  is 
one  which  is  created  by  operation  of  law.  En.  March  21, 
1872. 

Cal.Rep.Cit.   76,   471;   99.   590. 

Involuntary  trust:    See   post,  sees.  2223,  2224, 

§2218.  Parties  to  the  contract.  The  person  whose  con- 
fidence creates  a  trust  is  called  the  trustor;  the  person  in 
whom  the  confidence  is  reposed  is  called  the  trustee;  and 
the  person  for  whose  benefit  the  trust  is  created  is  called 
the  beneficiary.     En.  March  21,  1872. 

Cal.Rep.Cit.   82,   374. 

§2219.  What  constitutes  one  a  trustee.  Every  one  who 
'^oluntarilj'  assumes  a  relation  of  personal  confidence  with 
another  is  deemed  a  trustee,  within  the  meaning  of  this 
chapter,  not  only  as  to  the  person  who  reposes  such  con- 
fidence, but  also  as  to  all  persons  of  whose  affairs  he  thus 
acquires  information  which  was  given  to  sucli  person  in 
the  like  confidence,  or  over  whose  affairs  he,  by  such  con- 
fidence, obtains  any  control.    En.  March  21,  1872. 

Cal.Rep.Cit.      72,  559;      82,  373;      85,  446;   120,  323;   120,  678; 
125,  683;   130,  357;   133,  493. 

§2220.  For  what  purpose  a  trust  may  be  created.  A 
trust  may  be  created  for  any  purpose  for  which  a  contract 
may  lawfully  be  made,  except  as  otherwise  prescribed  by 
the  titles  on  Uses  and  Trusts  and  on  Transfers.  En.  March 
21,  1872. 

Cal.Rep.Cit.   58,  482;   58,  483;   71,  532;   108,  656;   123,  144. 

§  2221.  Voluntary  trust,  how  created  as  to  trustor,  tsuu- 
ject  to  the  provisions  of  section  852,  a  voluntary  trust  is 
created,  as  to  the  trustor  and  beneficiary,  by  any  words  or 
acts  of  the  trustor,  indicating  with  reasonable  certainty: 


461  TRUSTS     IN    GENERAL.  §§ 


1.  An  intention  on  the  part  of  the  trustor  to  create  a 
trust;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust.    En. 

March  21,  1872. 

Cal.Rep.Cit.  58,483;  70,452;  79,625;  95,  167 ;  106,  656 ; 
112,  2S4;  122,  25;  124,  421;  126,  l&l ;  132,  27;  135,  367; 
136,     96. 

Creation  of  involuntary  trust:    See  sees.  2223,  2224. 
Trusts  for  benefit  of  third  persons:    See   post,  sec.  2251. 

§  2222.  How  created  as  to  trustee.  Subject  to  the  pro- 
visions of  section  852,  a  voluntary  trust  is  created,  as  to 
the  trustee,  by  any  words  or  acts  of  his  indicating,  with 
reasonable  certainty: 

1.  His  acceptance  of  the  trust,  or  his  acknowledgment, 
made  upon  sufficient  consideration,  of  its  existence;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust.    En. 

March  21,  1872. 

Cal.Rep.Cit.  77,  339;  79,  625;  85,  446;  95,  167;  108,  656; 
122,     25;   132,     27;   135,  367;   136,  155;   137,  636. 

§  2223.  Involuntary  trustee,  who  is.  One  who  wrong- 
fully detains  a  thing  is  an  involuntary  trustee  thereof,  for 
the  benefit  of  the  owner.     En.  March  21,  1872. 

Cal.Rep.Cit.   58,  121;   58,  122;   107,  377;   118,  106. 

Compensation  of  involuntary  trustee:    See  sec.  2275. 
Involuntary  trustee,  who  is:    See   post,  sec.  2243. 

§2224.  Involuntary  trust  resulting  from  fraud,  mis- 
take, etc.  One  who  gains  a  thing  by  fraud,  accident, 
mistake,  undue  influence,  the  violation  of  a  trust,  or  other 
wrongful  act,  is,  unless  he  has  some  other  and  better  right 
thereto,  an  involuntary  trustee  of  the  thing  gained,  for  the 
benefit  of  the  person  who  would  otherwise  have  had  it. 
En.  March  21,  1872. 

Cal.Rep.Cit.      55,  562 

76,  471;      77,  339 

103,  183;"  107,  377 

132,       5;   133,  493 

Involuntary  trustee,  who  is:  Post,  sec.  2243;  compensa- 
tion of:    Post,  sec.  2275.  , 


58, 

122; 

58, 

123: 

67, 

237; 

TL, 

110 

85, 

35; 

85, 

445  ; 

86, 

600; 

98, 

93 

112, 

286; 

118, 

106  ; 

126, 

192; 

131, 

74 

S§  222S-2230  TRUSTS    IN    GENERAL.  46^ 

ARTICLE    II. 

OBLIGATIONS    OF    TRUSTEES.  ' 

§  2228.  Trustee's  obligation  to  good  faith. 

§  2229.  Trustee  not  to  use  property  for  his  own  profit. 

§   2230.  Certain   transactions   forbidden. 

I  2231.  Trustee's  influence  not  to  be  used  for  his  advantage. 

§  2232.  Trustee    not    to    assume    a    trust    adverse    to    interest    of 

beneficiary. 

§   2233.  To  disclose  adverse  interest. 

§   2234.  Trustee   guilty  of  fraud,   when. 

§   2235.  Presumption   against  trustees. 

§  2236.  Trustee  minglmg  trust  property  with  his  own. 

§  2237.  Measure  of  liability  for  breach  of  trust. 

§   2238.  Same. 

§  2239.  Co-trustees,  how  far  liable  for  each  otner. 

§  2228.     Trustee's  obligation  to  good  faith.     In  all  matters 

connected  with  his  trust,  a  trustee  is  bound  to  act  in  the 

highest  good   faith   toward   his   beneficiary,   and   may   not 

obtain    any    advantage    therein    over    the    latter    by    the 

slightest  misrepresentation,  concealment,  threat,  or  adverse 

pressure  of  any  kind.     En.  March  21,  1872. 

Cal.Rep.Cit.      82,  374;      86,  629;      94,  647;   112,     61;   133,  493; 
136,  463. 

§2229.     Trustee   not  to   use  property  for  his  own   profit. 

A  trustee  may  not  use  or  deal  with  the  trust  property  for 

his  own  profit,  or  for  any  other  purpose  unconnected  with 

the  trust,  in  any  manner.     En.  March  21,  1872. 

Cal.Rep.Cit.      82,374;      93,     30;      97,410;   109,177;   112,     61; 
120,  471;    124,  181;    130,  257;    131,  659;    133,  639. 

Purchaser  from  trustee  charged  with  the  trust,  when: 
Post,  sec.  2243. 

Presumption  of  undue  influence  on  transactions  between 
the  trustee  and  beneficiary:  Post,  sec.  2235;  violations 
of  the  duties  of  the  trustee  are  fraudulent:  Post,  sec.  2234. 

§  2230.  Certain  transactions  forbidden.  Neither  a  trus- 
tee nor  any  of  his  agents  may  take  part  in  any  transaction 
concerning  the  trust  in  which  he  or  any  ore  for  whom  he 
acts  as  agent  has  an  interest,  present  or  contingent,  adverse 
to  that  of  his  beneficiary,  except  as  follows: 

1.  When  fjie  beneficiary,  having  capacity  to  contract, 
with  a  full  knowledge  of  the  motives  of  the  trustee,  and  of 
all  other  facts  concerning  the  transaction  which  might 
affect  his  own  decision,  and  without  the  use  of  any  influence 
on  the  part  of  the  trustee,  permits  him  to  do  so; 


463  TRUSTS    IN    GENERAL.  §5  2231-2235 

2.  When  the  beneficiary  not  having  capacity  to  contract, 
the  proper  court,  upon  the  lilve  information  of  the  facts, 
grants  the  like  permission;  or, 

3.  When  some  of  the  beneficiaries  having  capacity  to 
contract  and  some  not  having  it,  the  former  grant  permis- 
sion for  themselves,  and  the  proper  court  for  the  latter,  in 
the  manner  above  prescribed.    En.  March  21,  1872. 

Cal.Rep.Cit.  54,106;  81,319;  81,323;  86,629;  98,177; 
112,  61;  113,  237;  121,  2S5  ;  121,  287;  130,  257;  130,  433; 
131,  659  ;   138,     95. 

Duty  to  inform  beneficiary:    Sec.  2233,  infra. 

Undertaking  inconsistent  trust:    Post,  sec.  2232. 

§2231.  Trustee's  influence  not  to  be  used  for  his  advan- 
tage. A  trustee  may  not  use  the  influence  whicn  his 
position  gives  him  to  obtain  any  advantage  from  his  bene- 
ficiary.    En.  March  21,  1872. 

Cal.Rep.Cit.   94,  461;   103,  101;   113,  237;    138,  95. 

§  2232.  Trustee  not  to  assume  a  trust  adverse  to  interest 
of  beneficiary.  No  trustee,  so  long  as  he  remains  in  the 
trust,  may  undertake  another  trust  adverse  in  its  nature 
to  the  interests  of  his  beneficiary  in  the  subject  of  the 
trust,  without  the  consent  of  the  latter.    En.  March  21,  1872. 

Cal.Rep.Cit.'  113,  237;   121,  328;   138,  95. 

Compare,  ante,  sec.  2230. 

Trustee's  duty  to  disclose  adverse  interest:  Compare 
with  sec.  2233,  post. 

Removal  of  trustee:     Post,  sees.  2282,  2283. 

§  2233.  To  disclose  adverse  interest.  If  a  trustee  ac- 
quires any  interest,  or  becomes  charged  with  any  duty, 
adverse  to  the  interest  of  his  beneficiary  in  the  subject  of 
the  trust,  he  must  immediately  inform  the  latter  thereof, 
and  may  be  at  once  removed.     En.  March  21,  1872. 

Cal.Rep.Cit.   55,  562;    86,  629;   113,  237. 

§2234.     Trustee  guilty  of  fraud,  when.     Every  violation 

of  the  provisions  of  the  preceding  sections  of  this  article 

is  a  fraud  against  the  beneficiary  of  the  trust.    En.  March 

21,  1872. 

Cal.Rep.Cit.  52,406;  81,319;  86,629;  94,461;  97,410: 
103,  102;    113,  237;   121,  328;   131,     79;   138,     95. 

§  2235.  Presumption  against  trustees.  All  transactions 
between  a  trustee  and  his  beneficiary  during  the  existence 


S§  2236-^2239  TRUSTS    IN    GENERAL.  4G4 

of  the  trust,  or  while  the  influence  acquired  by  the  trustee 
remains,  by  which  he  obtains  any  advantage  from  his  bene- 
ficiary, are  presumed  to  be  entered  into  by  the  latter 
without  sufficient  consideration,  and  under  undue  influence. 
En.  March  21,  1872. 

Cal.Rep.Cit.     54,440;      72,559;      73,161;     75,529;  82,374; 

94,  461;   103,  100;   103,  101;   120,  323;   120,  324;  130,  357; 

130,  358;   134,  172;   134,  173;   136,  463;   137,  183;  137,  693; 
137,  695;   137,  697. 

§2236.  Trustee  mingling  trust  property  with  his  own. 
A  trustee  who  willfully  and  unnecessarily  mingles  the  trust 
property  with  his  own,  so  as  to  constitute  himself  in  appear- 
ance its  absolute  owner,  is  liable  for  its  safety  in  all  events. 
En.  March  21,  1872. 

Cal.Rep.Cit.  97,  202 ;   120,  536 ;   120,  537. 

§2237.  Measure  of  liability  for  breach  of  trust.  A  trus- 
tee who  uses  or  disposes  of  the  trust  property,  contrary  to 
section  2229,  may,  at  the  option  of  the  beneficiary,  be 
required  to  account  for  all  profits  so  made,  or  to  pay  the 
value  of  its  use,  and,  if  he  has  disposed  thereof,  to  replace 
it,  with  Its  fruits,  or  to  account  for  its  proceeds,  with 
interest.     En.  March  21,  1872. 

Cal.Rep.Cit.  55,  563;   120,  471;  133,  639. 

Liability  for  noninvestment  of  funds:    See  post,  sec.  2262. 

Degree  of  diligence  requisite:    Post,  sec.  2259. 

§  2238.  Same.  A  trustee  who  uses  or  disposes  of  the 
trust  property  in  any  manner  not  authorized  by  the  trust, 
but  in  good  faith,  and  with  intent  to  serve  the  interests 
of  the  beneficiary,  is  liable  only  to  make  good  whatever 
is  lost  to  the  beneficiary  by  his  error.    En.  March  21,  1872. 

Cal.Rep.Cit.   136,  445. 

§2239.  Co-trustees,  how  far  liable  for  each  other.  A 
trustee  is  responsible  for  the  wrongful  acts  of  a  co-trustee 
to  which  he  consented,  or  which,  by  his  negligence,  he 
enabled  the  latter  to  commit,  but  for  no  others.  En.  March 
21,  1872. 

Cal.Rep.Cit.   87,  6 ;   120,  471. 

Compare,  also,  this  section  with  sec.  2268,  post. 


465  TRUSTS  FOR  BENEFIT  THIRD  PERSONS.        §§  2243-2250 

ARTICLE    III. 
OBLIGATIONS    OF    THIRD    PERSONS. 

§  2243.     Third  person,   when  involuntarx  trustee. 
§  2244.     When     third    perbon    must    see    to    application    of    trust 
property. 

§2243.  Third  person,  when  involuntary  trustee.  Every 
one  to  whom  pi'operty  is  transferred  in  violation  of  a  trust, 
holds  the  same  as  an  involuntary  trustee  under  such  trust, 
unless  he  purchased  it  in  good  faith,  and  for  a  valuable 
consideration.     En.  March  21,  1S72. 

Cal.Rep.Cit.  55,  562;   96,  307;   105,  6-4;   134,  657. 

§2244.  When  third  person  must  see  to  application  of 
trust  property.  One  vs^ho  actually  and  in  good  faith  trans- 
fers any  money  or  other  property  to  a  trustee,  as  such,  is 
not  bound  to  see  to  the  application  thereol,  aud  Lis  rignts 
can  in  no  way  be  prejudiced  by  a  misapplication  thereof  by 
the  trustee.  Other  persons  must,  at  their  peril,  see  to  the 
proper  application  of  money  or  other  property  paid  or 
delivered  by  them.    En.  March  21,  1872. 

Cal.Rep.Cit.  118,  106. 

% 

CHAPTER    II. 
TRUSTS    FOR    THE    BENEFIT    OF    THIRD    PERSONS. 

Article  I.  Nature  and  Creation  of  the  Trust,  §§  2250-2254. 

II.  Obligations   of   Trustees,    §§  2258-2263. 

III.  Powers  of  Trustees,   §§  2267-2269. 

IV.  Rights   of   Trustees,    §§  2273-2275. 

V.     Termination   of  the  Trust,   §§  2279-2283. 
VI.     Succession    or    Appointment    of    New    Trustees,    §§  2287- 
2289. 

ARTICLE    I. 

NATURE  AND  CREATION  OF  THE  TRUST. 

§  2250.  Who  are  trustees  within  scope  of  this  chapter. 

§   2251.  Creation  of  trust. 

§   2252.  Trustees  appointed  by  court. 

§   2253.  Declaration  of  trust. 

§  2254.  Same. 

§  2250.     Who  are  trustees  within  scope  of  this  chapter. 

The  provisions  of  this  chapter  apply  only  to  express  trusts, 
created  for  the  benefit  of  another  than  the  trustor,  and  in 


8J  2251-2258        TRUSTS  FOR  BENEFIT  THIRD   PERSONS.  4G6 

which  the  title  to  the  trust  property  is  vested  in  the  trustee; 
not  including,  however,  those  of  executors,  administrators, 
and  guardians,  as  such.    En.  March  21,  1872. 

Cal.Rep.Cit.   137,   638. 

§  2251.  Creation  of  trust.  The  mutual  consent  of  a 
trustor  and  trustee  creates  a  trust  of  which  the  beneficiary 
may  take  advantage  at  any  time  prior  to  its  rescission. 
En.  March  21,  1872. 

Cal.Rep.Cit.   61,  334;   91,  193;   95,  168;   110,  576;   122,  25. 

Revoking  trust,  beneficiary's  consent  necessary:      Post, 
sec.  2280. 
•    Promise  for  benefit  of  third  person:    See   ante,  sec.  1559. 

§2252.  Trustees  appointed  by  ccHJrt.  When  a  trustee  is 
appointed  by  a  court  or  public  officer,  as  such,  such  court 
or  officer  is  the  trustor,  within  the  meaning  of  the  last 
section.     En.  March  21,  1872. 

Cal.Rep.Cit.  91,   193. 

§  2253.  Declaration  of  trust.  The  nature,  extent,  and 
object  of  a  trust  are  expressed  in  the  declaration  of  trust. 
En.  March  21,  1872. 

§  2254.  Same.  All  declarations  of  a  trustor  to  his 
trustees,  in  relation  to  the  trust,  before  its  acceptance  by 
the  trustees,  or  any  of  them,  are  to  be  deemed  part  of  the 
declaration  of  the  trust,  except  that  when  a  declaration  of 
trust  is  made  in  writing,  all  previous  declarations  by  the 
same  trustor  are  merged  therein.    En.  March  21,  1872. 


ARTICLE    II. 

OBLIGATIONS     OF    TRUSTEES. 

§  2258.  Trustees  must  obey  declaration  of  trust. 

§   2259.  Degree  of  care  and  diligence  in  execution  of  trust. 

§   2260.  Duty  of  trustee  as  to   appointment  of  successor. 

§  2261.  Investment  of   money   by   trustee. 

§  2262.  Interest,   simple  or  compound,   on  omission  to   invest  trust 

moneys. 

§  2263.  Purchase  by  trustee  of  claims  against  trust  fund. 

§2258.  Trustees  must  obey  declaration  of  trust.  A 
trustee  must  fulfill  the  purpose  of  the  trust  as  declared 
at  its  creation,  and  must  follow  all  the  directions  of  the 
trustor  given  at  that  time,  except  as  modified  by  the  con- 


467  TRUSTS   FOR   BENEFIT   THIRD   PERSONS.        §§  2259-2263 

sent  of  all  parties  interested,  in  the  same  manner,  and  to 
the  same  extent,  as  an  employee.    En.  March  21,  1872. 

Cal.Rep.Cit.   58,   340. 

Trustee  must  follow  declaration  of  trust:    Compare  with 
the  duty  of  employee,  sec.  1981,  ante. 
Authority  of  trustee,  generally:    See,  post,  sec.  2267. 

§2259.  Degree  of  care  and  diligence  in  execution  of 
trust.  A  trustee,  whether  he  receives  any  compensation 
or  not,  must  use  at  least  ordinary  care  and  diligence  in 
the  execution  of  his  trust.     En.  March  21,  1872. 

Obligations  of  trustees:  See,  generally,  ante,  sees.  2228 
et  seq. 

§  2260.  Duty  of  trustee  as  to  appointment  of  successor. 
If  a  trustee  procures  or  assents  to  his  discharge  from  his 
office,  before  his  trust  is  fully  executed,  he  must  use  at 
least  ordinary  care  and  diligence  to  secure  the  appointment 
of  a  trustworthy  successor  before  accepting  his  own  final 
discharge.     En.   March  21,  1872. 

Succession  or  appointment  of  new  trustees:  See  post, 
sees.  2287  et  seq. 

§  2261.  Investment  of  money  by  trustee.  A  trustee  must 
invest  money  received  by  him  under  the  trust,  as  fast  as 
he  collects  a  sufficient  amount,  in  such  manner  as  to  afford 
reasonable  security  and  interest  for  the  same.  En.  March 
21,  1872. 

Cal.Rep.Cit.  137,  638. 

§2262.  Interest,  simple  or  compound,  on  omission  to  in- 
vest trust  moneys.  If  a  trustee  omits  to  invest  the  trust 
moneys  according  to  the  last  section,  he  must  pay  simple 
interest  thereon,  if  such  omission  is  negligent  merely, 
and  compound  interest  if  it  is  willful.     En.  March  21,  1872. 

Cal.Rep.Cit.   120,  471;    124,  573;   137,  638. 

Trustee's  liability  for  interest:  Compare  with  sec.  2237, 
ante. 

§  2263.     Purchase  by  trustee  of  claims  against  trust  fund. 

A  trustee  cannot  enforce  any  claim  against  the  trust  prop- 
erty which  he  purchases  after  or  in  contemplation  of  his 
appointment  as  trustee;    but  he  may  be  allowed,  by  any 


§5  2267-2269        TRUSTS  FOR   BENEFIT  THIRD   PERSONS.  468 

competent  court,  to  charge  to  the  trust  property  what  he 
has  in  good  iaith  paid  for  the  claim,  upon  discharging  the 
same.     En.  March  21,  1S72. 
Cal.Rep.Cit.   62,   376. 

Purchasing   debts   against   the   trust   estate   prohibited: 
See  ante,  sec.  2230. 


ARTICLE    III. 

POWERS     OF    TRUSTEES. 

§  2267.     Trustee's  powers  as   agent. 

I  2268.     All  must   act. 

§   2269.      Discretionary  powers. 

§  2267.  Trustee's  powers  as  agent.  A  trustee  is  a 
general  agent  for  the  trust  property.  His  authority  is 
such  as  is  conferred  upon  him  by  the  declaration  of  trust 
and  by  this  chapter,  and  none  other.  His  acts,  within  the 
scope  of  liis  authority,  bind  the  trust  property  to  the  same 
extent  as  tlie  acts  of  an  agent  bind  his  principal.  En. 
March  21,  1872. 

Powers  to  two  or  more  trustees:  See  post,  sees.  2268, 
2288,  and,  ante,  sec.  860. 

Agent's  acts  binding  principal:    See  post,  sees.  2330-2339. 

For  what  purposes  trusts  may  be  created:  See  ante, 
sees.  857,  2220. 

§2268.  All  must  act.  "Where  there  are  several  co-trus- 
tees, all  must  unite  in  any  act  to  bind  the  trust  property, 
unless  the  declaration  of  trust  oth-erwise  provides.  En. 
March  21,  1872. 

Survival  of  trust:    See   post,  sec.  2288. 

Liability  for  acts  of  co-trustee:    See    ante,  sec.  2239. 

Executors,  when  one  or  majority  may  act:  See  Code 
Civ.  Proc,  sec.  1355. 

§  2269.  Discretionary  powers.  A  discretionary  power 
conferred  upon  a  trustee  is  presumed  not  to  be  left  to  his 
arbitrary  discretion,  but  may  be  controlled  by  the  proper 
court  if  not  reasonably  exercised,  unless  an  absolute  dis- 
cretion is  clearly  conferred  by  the  declaration  of  trust.  En. 
March  21,  1872. 

Cal.Rep.Cit.  133,   648. 


469  TRUSTS   FOR   BENEFIT   THIRD   PERSONS.        §§  2273-2275 

ARTICLE    IV. 

RIGHTS    OF    TRUSTEES. 

§  2273.     Indemnification  of  trustee. 
§  2274.      Compensation   of  trustee. 
§  2275.      Involuntary  trustee. 

§  2273.  Indemnification  of  trustee.  A  trustee  is  entitled 
to  the  repayment,  out  of  the  trust  property,  of  all  expenses 
actually  and  properly  incurred  by  him  in  the  performance 
of  his  trust.  He  is  entitled  to  the  repayment  of  even  un- 
lawful expenditures,  if  they  were  productive  of  actual 
benefit  to  the  estate.     En.  March  21,  1872. 

Reimbursement  on  purchase  of  claims  against  estate: 
See  ante,  sec.  2263. 

§  2274.  Compensation  of  trustee.  Except  as  provided 
in  section  1700  of  the  Code  of  Civil  Procedure,  when  a 
declaration  of  trust  is  silent  upon  the  subject  of  compen- 
sation the  trustee  is  entitled  to  the  same  compensation  as 
an  executor.  If  it  specifies  the  amount  of  his  compensation, 
he  is  entitled  to  the  amount  thus  specified  and  no  more. 
If  it  directs  that  he  shall  be  allowed  a  compensation,  but 
does  not  specify  the  rate  or  amount,  he  is  entitled  to 
such  compensation  as  may  be  reasonable  under  the  cir- 
cumstances.    En.  March  21,  1872.     Am'd.  1889,  334. 

Cal.Rep.Cit.   56,   628. 

Compensation  of  trustees  the  same  as  that  of  executor 
where  the  declaration  of  trust  is  silent:  See  sec.  1618,  Code 
Civ.  Proc. 

Involuntary  trustee  entitled  to  no  compensation,  when: 
See  sec.  2275. 

§2275.  Involuntary  trustee.  An  involuntary  trustee, 
who  becomes  such  through  his  own  fault,  has  none  of  the 
rights    mentioned    in    this    article.      En.    March    21,    1872. 

Involuntary  trustee  defined:     Sees.  2217,  2223,  2224,  ante. 


JJ  2279-2283        TRUSTS  FOR  BENEFIT  THIRD  PERSONS.  470 

ARTICLE    V. 

TERMINATION    OF    THE    TRUST. 

§  2279.  Trust,   how   extinguished. 

§  2280.  Not   revocable. 

§   2281.  Trustee's   office,    how   vacated. 

§  2282.  Trustee,    how   discharged. 

§  2283.  Removal  by  superior  court. 

§  2279,  Trust,  how  extinguished.  A  trust  is  extinguished 
by  the  entire  fulfillment  of  its  object,  or  by  such  object 
becoming  impossible  or  unlawful.    En.  March  21,  1872. 

Cal.Rep.Cit.  70,  331;   73,  20;   84,  297;   113,  142;   124,  420. 

§  2280.  Not  revocable.  A  trust  cannot  be  revoked  by 
the  trustor  after  its  acceptance,  actual  or  presumed,  by 
the  trustee  and  beneficiaries,  except  by  the  consent  of  all 
the  beneficiaries,  unless  the  declaration  of  trust  reserves 
a  power  of  revocation  to  the  trustor,  and  in  that  case  the 
power  must  be  strictly  pursued.    En.  March  21,  1872. 

Cal.Rep.Cit.  70,  453 ;   109,  331 ;   113,  142  ;   122,  26 ;   128,  9. 

§2281.  Trustee's  office,  how  vacated.  The  office  of  a 
trustee  is  vacated: 

1.  By  his  death;  or, 

2.  By  his  discharge.     En.  March  21,  1872. 

§  2282.  Trustee,  how  discharged.  A  trustee  can  be  dis- 
charged from  his  trust  only  as  follows: 

1.  By  the  extinction  of  the  trust; 

2.  By  the  completion  of  his  duties  under  the  trust; 

3.  By  such  means  as  may  be  prescribed  by  the  declaration 
of  trust; 

4.  By  the  consent  of  the  beneficiary,  if  he  had  capacity  to 
contract; 

5.  By  the  judgment  of  a  competent  tribunal,  in  a  direct 
proceeding  for  that  purpose,  that  he  is  of  unsound  mind; 
or, 

6.  By  the  superior  court.  En.  March  21,  1872.  Am'd. 
1883,  3. 

Cal.Rep.Cit.   73.  20;   132,  542. 

§  2283.  Removal  by  superior  court.  The  superior  court 
may  remove  any  trustee  who  has  violated  or  is  unfit  to 


471  TRUSTS   FOR   BENEFIT  THIRD    PERSONS.        §§  2287-2289 

execute    the   trust,    or   may   accept   the    resignation   of   a 
trustee.     En.  March  21,  1872.     Am'd.  1880,  8. 
Cal.Rep.Cit.  103,  250;   111,  635. 


ARTICLE    VI. 

SUCCESSION  OR  APPOINTMENT  OF  NEW  TRUSTEES. 

§  2287.  "Vacant  trusteeship  filled  by  court. 
§  2288.  Survivorship  between  co-trustees. 
§  2289.      Superior  court  as  trustee. 

§2287.  Vacant  trusteeship  filled  by  court.  The  superior 
court  may  appoint  a  trustee  whenever  there  is  a  vacancy, 
and  the  declaration  of  trust  does  not  provide  a  practicable 
method  of  appointment.    En.  March  21,  1872.    Am'd.  1880,  8. 

Cal.Rep.Cit.   70.  333;   91,  193. 

§2288,  Survivorship  between  co-trustees.  On  the  death, 
renunciation,  or  discharge  of  one  of  several  co-trustees, 
the  trust  survives  to  the  others.    En.  March  21,  1872. 

Cal.Rep.Cit.   70,   333. 

This  section  is  consistent  with  section  860;  see,  also,  ante, 
sec.  2268. 

Survival  of  guardianship:    See   ante,  sec.  252. 

§2289.     Superior  court  as  trustee.     When  a  trust  exists 

without  any  appointed  trustee,  or  where  all  the  trustees 

renounce,  die,  or  are  discharged,  the  superior  court  of  the 

county  where  the  trust  property,  or  some  portion  thereof, 

is  situated  must  appoint  another  trustee,  and   direct  the 

execution  of  the  trust.     The  court  may,  in  its  discretion, 

appoint  the  original  number,  or  any  less  number  of  trustees. 

En.  March  21,  1872.    Am'd.  1880,  8. 

Cal.Rep.Cit.     70,  333;   101.  149;  111,  636;   115,  251;   123,  352; 
133,  649. 


§S  2295-2297  AGENCY    IN    GENERAL.  472 

TITLE    IX. 

AGENCY-. 

Chapter  I.     Agency  in  General,  §§  2295-2356. 
II.     Particular  Agencies,  §§  2362-2389. 

CHAPTER    I. 

AGENCY    IN    GENERAL. 

Article  I.      Definition    of    Agency,    55  2295-2300. 
II.      Authority  of  Agents,   §§  2304-2326. 

III.  Mutual    Obligations    of    Principals    and    Third    Persons, 

§§  2330-2339. 

IV.  Obligations  of  Agents  to  Third   Persons.   §§  2342-2345. 
V.      Delegation  of  Agency,  §§  2349-2351. 

VI.     Termination  of  Agency,  §§  2355,  2356. 

ARTICI.E    I. 

DEFINITION    OF    AGENCY. 

§  2295.  Agency,  what. 

§  2296.  Who  may  appoint,  and  who  may  be  an  agent. 

§   2297.  Agents,  general  or  special. 

§   2298.  Agency,  actual  or  ostensible. 

§   2299.  Actual  agency  . 

§  2300.  Ostensible   agency. 

§  2295.  Agency,  what.  An  agent  is  one  who  represents 
another,  called  the  principal,  in  dealings  with  third  persons. 
Such    representation    is    called    agency.     En,    March    21, 

1872. 

Cal.Rep.Cit.   66,  461;    75,  128;    82,  81;    123,   302;   131,  325. 
Master  and  servant:    See   ante,  sees.  2009  et  seq. 
Factors:    See   ante,  sees.  2026  et  seq. 
Agents:    See   ante,  sees.  2019-2022. 

§  2296.     Who   may   appoint,   and   who   may   be   an   agent. 

Any  person  having  capacity  to  contract  may  appoint  an 
agent,  and  any  person  may  be  an  agent.     En.  March  21, 

1875. 

§  2297.  Agents,  general  or  special.  An  agent  tor  a  par- 
ticular act  or  transaction  is  called  a  special  agent.  All 
others  are  general  agents.    En.  March  21,  1872. 

Cal.Rep.Cit.   82,  4;   123,  302;   124,  685;   131,  325. 


473 


AGENCY     IN     GENERAL. 


§§  229S  2304 


§2298.  Agency,  actual  or  ostensible.  An  agency  is 
either  actual  or  ostensible.     En.  March  21,  1S72. 

Actual  agent's  authority:  Post,  sees.  2315,  2316,  2318,  2319. 

Ostensible  agent's  authority:  Post,  sees.  2315,  2317-2319, 
2334. 

§  2299.  Actual  agency.  An  agency  is  actual  when  the 
agent  is  really  employed  by  the  principal.  En.  March  21, 
1872. 

Cal.Rep.Cit.   93.   30. 

§  2300.     Ostensible    agency.      An    agency    is    ostensible 

when  the  principal  intentionally,  or  by  want  of  ordinary 

care,  causes  a  third  person   to  believe  another  to  be  his 

agent  who  is  not  really  employed  by  him.     En.  March  21, 

1872. 

Cal.Rep.Cit.     82,     81;     89,  634;   113,  679;   117,  421;   124,  227; 
130,  269;   137,  100. 

Compare,  post,  sec.  2317. 


ARTICLE    II. 

AUTHORITY    OF    AGENTS. 

§  2304.  What  authority  may  be  conferred. 

S  2305.  Agent  may  perform  acts  required  of  principal  by  code. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal. 

§   2307.  Creation  of  agency. 

§  2308.  Consideration    unnecessary. 

§   2309.  Form  of  authority. 

S   2310.  Ratification   of   agent's   act. 

§   2311.  Ratification  of  part  of  a  transaction. 

§   2312.  When  ratification  void. 

§  2313.  Ratification   not   to   work   injury  to   third   persons. 

§   2314.  Rescission   of  ratification. 

§   2315.  Measure  of  agent's  authority. 

§   2316.  Actual   authority,    what. 

i!   2317.  Ostensible   authority,   what. 

§  2318.  Agent's  authority  as  to  persons  having  notice  of  restric- 
tions  upon   it. 

§   2319.  Agent's  necessary  authority. 

§   2320.  Agent's   power  to   di=;obey   instructions. 

§  2321.  Authority  to  be  construed  by  its  specific  rather  than  by  its 
general  terms. 

§  2322.  Exceptions   to   general    authority. 

5   2323.  What   included   in  authority  to   sell  personal  property. 

S   2324.  What   included  in   authority  to  sell   real  property. 

§  2325.  Authority' of  general  agent  to  receive  price  of  property. 

§   2326.  Authority  of  special  agent  to  receive  price. 

§2304.     What   authority    may    be    conferred.      An    agent 
Diay    be    authorized    to    do    any    acts    which    his    principal 


{§2305-231*0  AGENCY    IN    GENERAL.  474 

might  do,  except  those  to  which  the  latter  is  bound  to  give 
his  personal  attention.     En.  March  21,  1872. 

Cal.Rep.Cit.   74,   589. 

Delegation  of  authority  by  agent:    Sees.  2349-2351. 

§  2305.  Agent  may  perform  acts  required  of  principal 
by  code'.  Every  act  which,  according  to  this  code,  may  be 
done  by  or  to  any  person,  may  be  done  by  or  to  the  agent 
of  such  person  for  that  purpose,  unless  a  contrary  intention 
clearly  appears.     En.  March  21,  1872. 

Cal.Rep.Cit.   74,   5S9. 

§  2306.  Agent  cannot  have  authority  to  defraud  prin- 
cipal. An  agent  can  never  have  authority,  either  actual  or 
ostensible,  to  do  an  act  which  is,  and  is  known  or  suspected 
by  the  person  with  whom  he  deals  to  be,  a  fraud  upon  the 
principal.     En.  March  21,  1872. 

Cal.Rep.Cit  87,   262. 

§  2307.  Creation  of  agency.  An  agency  may  be  created, 
and  an  authority  may  be  conferred,  by  a  precedent  author- 
ization or  a  subsequent  ratification.    En.  March  21,  1872. 

Cal.Rep.Cit.   89,  243;    119,  650;   124,  685;   130,  434;   132,  98. 

§  2308.  Consideration  unnecessary.  A  consideration  is 
not  necessary  to  make  an  authority,  whether  precedent  or 
subsequent,  binding  upon  the  principal.    En.  March  21,  1872. 

§  2309.  Form  of  authority.  An  oral  authorization  is 
sufficient  for  any  purpose,  except  that  an  authority  to  enter 
into  a  contract  required  by  law  to  be  in  writing  can  only 
be  given  by  an  instrument  in  writing.     En.  March  21,  1872. 

Cal.Rep.Cit.   78,  632;   81,  541;    94,  549;   113,  227;   113,  229. 

Statute  of  frauds:     Ante,  sec.  1624. 

Power  of  attorney  to  execute  mortgage:  See  post,  sec. 
2933. 

§  2310.  Ratification  of  agent's  act.  A  ratification  can 
be  made  only  in  the  manner  that  would  have  been  neces- 
sary to  confer  an  original  authority  for  the  act  ratified,  or 
where  an  oral  authorization  would  suffice,  by  accepting  or 
retaining  the  benefit  of  the  act,  with  notice  thereof.  En. 
Vlarch  21,  1872. 

Cal.Rep.Cit.  63,142;  82,  6;  94,549;  106,600;  109,  40; 
113,  227;  113,  230;  113,  231;  114,  461 ;  119,  650;  127,  271; 
130,  416;    130,  434. 


475  AGENCY    IN    GENERAL.  §§  2311-2311 

A  ratification  is  not  binding,  and  may  be  rescinded,  if 
made  witliout  full  knowledge  of  tbe  facts:  See  post,  sec. 
2314. 

Ratification  of  part:    See  post,  sec.  2311. 

§  2311.  Ratification  of  part  of  a  transaction.  Ratification 
of  part  of  an  indivisible  transaction  is  a  ratification  of  the 
whole.    En.  March  21,  1872. 

Cal.Rep.Cit.   113,  231 ;   113,  236. 

§  2312.  When  ratification  void.  A  ratification  is  not 
valid  unless,  at  the  time  of  ratifying  the  act  done,*  the 
principal  has  power  to  confer  authority  for  such  an  act. 
En.  March  21,  1872. 

Cal.Rep.Cit.   63,  142  ;    106,  600  ;   107,  41. 

§  2313.  Ratification  not  to  work  injury  to  third  persons. 
No  unauthorized  act  can  be  made  valid,  retroactively,  to 
the  prejudice  of  third  persons,  without  their  consent.  En. 
March  21,  1872. 

Cal.Rep.Cit.   88,  281;   106.  600;   107,  41. 

§  2314.  Rescission  of  ratification.  A  ratification  may  be 
rescinded  when  made  without  such  consent  as  is  required 
in  a  contract,  or  with  an  imperfect  knowledge  of  the 
material  facts  of  the  transaction  ratified,  but  not  otherwise. 
En.  March  21,  1872. 

Cal.Rep.Cit.   63,  142;   113,  237;   113,  238. 

§2315.  IVIeasure  of  agent's  authority.  An  agent  has  such 
authority  as  the  principal,  actually  or  ostensibly,  confers 
upon  him.     En.  March  21,  1872. 

Cal.Rep.Cit.   66,  64  ;    68,  162  ;    77,  453. 

See    infra,  sees.  2317-2319,  2334;  ante,  sec.  2300. 

Actual  agent  defined:    Sec.  2299. 

§  2316.  Actual  authority,  what.  Actual  authority  is  such 
as  a  principal  intentionally  confers  upon  the  agent,  or 
intentionally,  or  by.want  of  ordinary  care,  allows  the  agent 
to  believe  himself  to  possess.     En.  March  21,  1872, 

Cal.Rep.Cit.   66,   64. 

§  2317.  Ostensible  authority,  what.  Ostensible  authority 
is  such  as  a  principal,  intentionally  or  by  want  of  ordinary 


§§  2318-2321  AGENCY    IN    GENERAL.  476 

care,  causes  or  allows  a  third  person  to  believe  the  agent 
to  possess.    En.  March  21,  1872. 

Cal.Rep.Cit.      66,     64;      66.461;      82,       5;      87,528;      95,     14; 
108,  230;   113,  123;   137,  100. 

Ostensible  agent  defined:    Sec.  2300. 
Estoppel  from  a  subsequent  ratification:    See  ante,  sees. 
2307,  2310,  2312-2314. 

§  2318.  Agent's  authority  as  to  persons  having  notice 
of  restrictions  upon  it.  Every  agent  has  actually  such 
authority  as  is  defined  by  this  title,  unless  specially  de- 
prived thereof  by  his  principal,  and  has  even  then  such 
authority  ostensibly,  except  as  to  persons  who  have  actual 
or  constructive  notice  of  the  restriction  upon  his  authority. 
En.  March  21,  1872. 

Cal.Rep.Cit.   114,  399  ;137,  100. 

§2319.  Agent's  necessary  authority.  An  agent  has 
authority: 

1.  To  do  everything  necessary  or  proper  and  usual, 
in  the  ordinary  course  of  business,  for  effecting  the  pur- 
pose of  his  agency;  and, 

2.  To  make  a  representation  respecting  any  matter  of 
fact,  not  including  the  terms  of  his  authority,  but  upon 
which  his  right  to  use  his  authority  depends,  and  the  truth 
of  which  cannot  be  determined  by  the  use  of  reasonable 
diligence  on  the  part  of  the  person  to  whom  the  represen- 
tation is  made.     En.  March  21,  1872. 

Cal.Rep.Cit.     55,  424;      61,  341;      68,  162;     75,  162;     87,  529; 
95,     12.       Subd.   2—130,  104;   137,  100. 

§  2320.  Agent's  power  to  disobey  instructions.  An  agent 
has  power  to  disobey  instructions  in  dealing  with  the  sub- 
ject of  the  agency,  in  cases  where  it  is  clearly  for  the 
interest  of  his  principal  that  he  should  do  so,  and  there 
is  not  time  to  communicate  with  the  principal.  En.  March 
21,  1872.  , 

Cal.Rep.Cit.   70.  453. 

§2321.  Authority  to  be  construed  b/  its  specific  rather 
than  by  its  general  terms.  When  an  authority  is  given 
partly  in  general  and  partly  in  specific  terms,  the  general 
authority  gives  no  higher  powers  than  those  specifically 
mentioned.     En.  March  21,  1872. 


477  AGENCY    IN    GENERAL.  §§  2322-2326 

§  2322.  Exceptions  to  general  authority.  An  authority 
expressed  in  general  terms,  however  broad,  does  not 
authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course 
of  business  to  do  so; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by 
article  II,  chapter  I,  of  the  last  title.    En.  March  21,  1872. 

Cal.Rep.Cit.   81,  319;   84,  314;   92,  112;   121,  328;    123,  383. 

Defining  scope  of  agency:    See   ante,  sec.  2319,  subd.  2. 
Obligation  of  trustees:    Ante,  sees.  2228-2239. 

§2323.  What  included  in  authority  to  sell  personal  prop- 
erty.  An  authority  to  sell  personal  property  includes 
authority  to  warrant  the  title  of  the  principal,  and  the 
quality  and  quantity  of  the  property.    En.  March  21,  1872. 

Auctioneers,  warranty  by:    See    post,  sec.  2362,  subd.  3. 

§  2324.  What  included  in  authority  to  sell  real  property. 
An  authority  to  sell  and  convey  real  property  includes 
authority  to  give  the  usual  covenants  of  warranty.  En. 
March  21,  1872. 

§2325.  Authority  of  general  agent  to  receive  price  of 
property.  A  general  agent  to  sell,  who  is  intrusted  by  the 
principal  with  the  possession  of  the  thing  sold,  has  au- 
thority to  receive  the  price.     En.  March  21,  1872. 

Cal.Rep.Cit.   125.   614. 

Agent  to  collect:    Ante,  sec.  2021. 

§  2326.  Authority  of  special  agent  to  receive  price.  A 
special  agent  to  sell  has  authority  to  receive  the  price  on 
delivery  of  the  thing  sold,  but  not  afterwards.  En.  March 
21,  1872. 


§§  2330-2334  AGENCY    IN    GENERAL.  478 

ARTICLE    III. 
MUTUAL  OBLIGATIONS  OF  PRINCIPALS  AND  THIRD  PERSONS. 

§  2330.     Principal,   how  affected  by  acts  of  agent  within  the  scope 

of  his   authority. 
§  2331.     Principal,  when  bound  by  incomplete  execution  of  authority. 
§   2332.      Notice  to   agent  when  notice  to  principal. 
§  2333.      Obligation   of  principal   when   agent   exceeds   his   authority. 
§  2334.      For  acts  done  under  a  merely  ostensible  authority. 
§  2335.      When   exclusive  credit   is  given   to  agent. 
§  2336.     Rights  of  person  who  deals  with  agent  without  knowledge 

of   agency. 
§  2337.      Instrument   intended  to  bind  principal  does   bind  him. 
§  2338.      Principal's  responsibility  for  agent's  negligence  or  omission. 
§  2339.      Principal's    responsibility    for    wrongs    willfully    committed 

by  the  agent. 

§  2330.  Principal,  liow  affected  by  acts  of  agent  within 
the  scope  of  his  authority.  An  agent  represents  his  prin- 
cipal for  all  purposes  within  the  scope  of  his  actual  or 
ostensible  authority,  and  all  the  rights  and  liabilities  which 
would  accrue  to  the  agent  from  transactions  within  such 
limit,  if  they  had  been  entered  into  on  his  own  account, 
accrue  to  the  principal.     En.  March  21,  1872. 

Cal.Rep.Cit.  117,  422  ;   118,  321 ;   131,  7. 

§  2331.  Principal,  when  bound  by  incomplete  execution 
of  authority.  A  principal  is  bound  by  an  incomplete  execu- 
tion of  an  authority,  when  it  is  consistent  with  the  whole 
purpose  and  scope  thereof,  but  not  otherwise.  En.  March 
21,  1872. 

§  2332.     Notice  to  agent,  when   notice  to   principal.     As 

against  a  principal,  both  principal  and  agent  are  deemed 
to  have  notice  of  whatever  either  has  notice  of,  and  ought, 
in  good  faith,  and  the  exercise  of  ordinary  care  and  dili- 
gence, to  communicate  to  the  other.    En.  March  21,  1872. 

Cal.Rep.Cit.   103,   629. 

§  2333.  Obligation  of  principal  when  agent  exceeds  his 
authority.  When  an  agent  exceeds  his  authority,  his 
principal  is  bound  by  his  authorized  acts  so  far  only  as 
they  can  be  plainly  separated  from  those  which  are  un- 
authorized.    En.  March  21,  1872. 

§  2334.  For  acts  done  under  a  merely  ostensible  au- 
thority.   A  principal  is  bound  by  acts  of  his  agent,  under  a 


479  AGENCY    IN    GENERAL.  §§  2335-2::39 

merely  ostensible  authority,  to  those  persons  only  who  have 
in  good  faith,  and  without  ordinary  negligence,  incurred 
a  liability  or  parted  with  value,  upon  the  faith  thereof. 
En.  March  21,  1872. 

Cal.Rep.Cit.   117,  422 ;   130,  269. 

Ostensible  authority:   See  ante,  sec.  2317. 

§2335.     When    exclusive    credit    is    given    to    agent.     If 

exclusive  credit  is  given  to  an  agent  by  the  person  dealing 
with  him,  his  principal  is  exonerated  by  payment  or  other 
satisfaction  made  by  him  to  his  agent  in  good  faith,  before 
receiving  notice  of  the  creditor's  election  to  hold  him 
responsible.    En.  March  21,  1872. 

§  2336.  Riglits  of  person  who  deals  with  agent  without 
knowledge  of  agency.  One  who  deals  with  an  agent  with- 
out knowing  or  having  reason  to  believe  that  the  agent  acts 
as  such  in  the  transaction,  may  set  off  against  any 
claim  of  the  principal  arising  out  of  the  same,  all 
claims  which  he  might  have  set  off  against  the  agent  before 
notice  of  the  agency.    En.  March  21,  1872. 

§2337.  Instrument  intended  to  bind  principal  does  bind 
him.  An  instrument  within  the  scope  of  his  authority,  by 
which  an  agent  intends  to  bind  his  principal,  does  bind  him 
if  such  intent  is  plainly  inferable  from  the  instrument  itself. 
En.  March  21,  1872. 

§2338.  Principal's  responsibility  for  agent's  negligence 
or  omission.  Unless  required  by  or  under  the  authority  of 
law  to  employ  that  particular  agent,  a  principal  is  respon- 
sible to  third  persons  for  the  negligence  of  his  agent  in 
the  transaction  of  the  business  of  the  agency,  including 
wrongful  acts  committed  by  such  agent  in  and  as  a  part 
of  the  transaction  of  such  business,  and  for  his  willful 
omission  to  fulfill  the  obligations  of  the  principal.  En. 
March  21,  1872. 

Cal.Rep.Cit.      52,  289;   118,  321;   119,  650;   138,  476;   138,  478. 

See  sec.  2384,  post. 

§2339.  Principal's  responsibility  for  wrongs  willfully 
committed  by  the  agent.  A  principal  is  responsible  for  no 
other  wrongs  committed  by  his  agent  than  those  mentioned 


§§2342-2344  AGENCY    IN    GENERAL,  480 

In  the  last  section,  unless  he  has  authorized  or  ratified 
them,   even  though  they  are   committed   while   the  agent 
is  engaged  in  his  service.     En,  March  21,  1872. 
Cai.Rep.Cit,  119,  650. 


ARTICLE    IV. 

OBLIGATIONS    OF    AGENTS    TO    THIRD    PERSONS. 

§  2342,  Warranty  of  authority. 

§  2343.  Agent's   responsibility   to   third   persons. 

§  2344.  Obligation  of  agent  lo  surrender  property  to  third  person, 

§  2345.  Code  provisions  governing. 

§  2342.  Warranty  of  authority.  One  who  assumes  to 
act  as  an  agent  thereby  warrants,  to  all  who  deal  with 
him  in  that  capacity,  that  he  has  the  authority  which  he 
assumes.     En.  March  21,  1872, 

Damages  for  breach  of  warrant  of  authority:  Post,  sec. 
3318. 

§  2343.     Agent's    responsibility    to    third     persons.     One 

who  assumes  to  act  as  an  agent  is  responsible  to  third  per- 
sons as  a  principal  for  his  acts  in  the  course  of  his  agency, 
in  any  of  the  following  cases,  and  in  no  others: 

1,  When,  with  his  consent,  credit  is  given  to  him  per- 
sonally in  a  transaction; 

2,  When  he  enters  into  a  written  contract  in  the  name 
of  his  principal,  without  believing,  in  good  faith,  that 
he  has  authority  to  do  so;  or, 

3,  When  his  acts  are  wrongful  in  their  nature.  En. 
March  21,  1872, 

Master  of  ship  personally  liable:      Post,   sec.   2382. 

§2344.  Obligation  of  agent  to  surrender  property  to 
third  person.  If  an  agent  receives  anything  for  the  bene- 
fit of  his  principal,  to  the  possession  of  which  another 
person  is  entitled,  he  must,  on  demand,  surrender  it  to 
such  person,  or  so  much  of  it  as  he  has  under  his  control 
at  the  time  of  demand,  on  being  indemnified  for  any  ad- 
vance which  he  has  made  to  his  principal,  in  good  faith, 
on  account  of  the  same;  and  is  responsible  therefor,  if, 
after  notice  from  the  owner,  he  delivers  it  to  his  principal. 
En,  March  21,  1872, 


481  AGENCY    IN    GENERAL.  §§  2345-2351 

Compare   with   sections   on   deposit:      Ante,   sees.   1822, 
1825,  1826. 

§  2345.     Code   provisions   governing.    The  provisions   of 
this  article  are  subject  to  the  provisions  of  part  I,  division 
first,  of  this  code.    En.  March  21,  1872. 
See  ante,  sees.  25-42. 


ARTICLE    V. 

DELEGATION    OP    AGENCY. 

§  2349.     Agent's  delegation  of  his  powers. 

I  2350.     Agent's  unauthorized  employment  of  subagent. 

§  2351.      Subagent   rightfully  appointed,   represents  principal. 

§  2349.  Agent's  delegation  of  liis  powers.  An  agent,  un- 
less specially  forbidden  by  his  principal  to  do  so,  can  dele- 
gate his  powers  to  another  person  in  any  of  the  following 
cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the 
subagent  can  lawfully  perform; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such 
powers;  or, 

4.  When  such  delegation  is  specially  authorized  by  the 

principal.     En.  March  21,  1872. 

Cal.Rep.Cit.     92,  113;   102,  322;   110,  251;   124,  685;   124,  686; 
124,  687.       Subd.  4—124,  684. 

§  2350.     Agent's   unauthorized   employment   of  subagent. 

If  an  agent  employs  a  subagent  without  authority,  the  for- 
mer is  a  principal  and  the  latter  his  agent,  and  the  prin- 
cipal of  the  former  has  no  connection  with  the  latter.  En. 
March  21,  1872. 

See  ante,  sec.  2022. 

§  2351.  Subagent  rightfully  appointed,  represents  prin- 
cipal. A  subagent,  lawfully  appointed,  represents  the 
principal  in  like  manner  with  the  original  agent;  and  the 
original  agent  is  not  responsible  to  third  persons  for  the 
acts  of  the  subagent.  En.  March  21,  1872. 

Civ.   Code— 21 


5§  2355-2362  PARTICULAR    AGENCIES.  482 

ARTICLE    VI. 

TERMINATION     OF    AGENCY. 

§  2355.     Termination  of  Agency. 
I  2356.     Same. 

§  2355.  Termination  of  agency.  An  agency  Is  termi- 
nated, as  to  every  person  having  notice  thereof,  by: 

1.  The  expiration  of  its  term; 

2.  The  extinction  of  its  subject; 

3.  The  death  of  the  agent; 

4.  His  renunciation  of  the  agency;  or, 

5.  The  incapacity  of  the  agency  [agent]  to  act  as  sucli. 
En.  March  21,  1872. 

Cal.Rep.Cit.   69,  230.    Subd.   4—121,  328. 

§  2356.  Same.  Unless  the  pov/er  of  an  agent  is  coupled 
with  an  interest  in  the  subject  of  the  agency,  it  is  ter- 
minated, as  to  every  person  having  notice  thereof,  by; 

1.  Its  revocation  by  the  principal; 

2.  His  death;   or, 

3.  His  incapacity  to  contract.     En.  March  21,  1872. 

Cal.Rep.Cit.     70,258;      70.260;      75,368;     89,255;     92,144; 
131,  325. 

CHAPTER    II. 

PARTICULAR    AGENCIES. 

Article  I.  Auctioneers,    §§  2362-2363. 

II.  Factors,   §§  2367-2369. 

IIL  Shipmasters   and   Pilots,   §§  2373-2385. 

IV.  Ships'   Managers,  §§  2388-2389. 

ARTICLE    I. 

AUCTIONEERS. 

§  2362.     Auctioneer's  authority  from  the  seller. 
I  2363.     Auctioneer's   authority  from   the  bidder. 

§  2362.  Auctioneer's  authority  from  the  seller.  An  auc- 
tioneer, in  the  absence  of  special  authorization  or  usage  to 
the  contrary,  has  authority  from  the  seller  only  as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usu- 
ally sold  on  credit  at  auction; 


483  PARTICULAR    AGENCIES.  §§  2363-2368 

3.  To  wairant,  in  like  manner  with  other  agents  to  sell, 
according  to  section  2323; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  thing  sold,  upon  payment  of  the  price; 

6.  To  collect  the  price;   and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and 
usual,  in  the  ordinary  course  of  business,  for  effecting 
these  purposes.     En.  March  21,  1872. 

See  Pol.  Code,  sees.  3284  et  seq. 

§2363.  Auctioneer's  authority  from  the  bidder.  An  auc- 
tioneer has  authority  from  a  bidder  at  the  auction,  as  well 
as  from  the  seller,  to  bind  both  by  a  memorandum  of  the 
contract,  as  prescribed  in  the  title  on  Sale.  En.  March  21, 
1872. 

Concerning  auctioneers:     Pol.   Code,   sees.   3284-3324. 

Entries  by  auctioneer:  See  ante,  sec.  1798;  and  see 
generally  the  chapter  on  "Sale  by  Auction,"  ante,  sees. 
1792-1798. 


ARTICLE    II. 

FACTORS. 
S  2367.     Factor,  what. 
§  2368.     Actual   authority  of   factor. 
§  2369.     Ostensible  authority. 

§  2367.  Factor,  what.  A  factor  is  an  agent,  as  defined 
by  section  2026.    En.  March  21,  1872. 

§  2368.  Actual  authority  of  factor.  In  addition  to  the 
authority  of  agents  in  general,  a  factor  has  actual  authority 
from  his  principal,  unless  specially  restricted: 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale, 
except  such  things  as  it  is  contrary  to  usage  to  sell  on 
credit;  but  not  to  pledge,  mortgage,  or  barter  the  same; 
and, 

3.  To  delegate  his  authority  to  his  partner  or  servant, 
but  not  to  any  person  in  an  independent  employment.  En. 
March  21,  1872. 

Cal.Rep.Cit.   66,  461.   Subd.   2—55,  424. 

See  post,  sec.  2991, 


85  2369-2376  PARTICCLAR    AGENCIES.  484 

§  2369.  Ostensible  authority.  A  iactor  has  ostensible 
authority  to  deal  with  the  property  of  his  principal  as  his 
own,  in  transactions  with  persons  not  having  notice  ol:  the 
actual  ownership.     En.  March  21,  1872. 

Cal.Rep.Cit.   52,  5S9  ;   55,  424;   61,  420;    66,  460;   66,  461. 


ARTICLE    III. 

SHIPMASTERS     AND     PILOTS. 

§  2373.  Authority  of  shipmaster  on  behalf  of  shipowner. 

§   2374.  Authority  to  boriow. 

§   2375.  Authority  on   behalf  of  owners  of  cargo. 

§   2376.  Power  to  make  contracts, 

§   2377.  Power  to  hypothecate. 

§   2378.  Master's  power  to  sell  ship. 

§   2379.  Master's  power  to  sell  cargo. 

§   2380.  Authority  to   ransom  ship. 

§   2381.  Abandonment   terminates   master's   power. 

§   2382.  Personal   liability  for  contracts  concerning  the  ship. 

§   2383.  Liability  for  acts  of  persons  employed  upon  the  ship. 

§   2384.  Responsibility  for  negligence  of  pilot. 

§   2385.  Obligations  of  shipowner  to  owner  of  cargo  sold. 

§2373.  Authority  of  shipmaster  on  behalf  of  shipowner. 
The  master  of  a  ship  is  a  general  agent  for  its  owner  in  all 
matters  concerning  the  same.     En.  March  21,  1872. 

Note. — This  article  is  chiefly  confined  to  defining  the  au- 
thority of  shipmasters.  His  duties  will  be  found  in  sees. 
2034-2044,  ante. 

§  2374.  Authority  to  borrow.  The  master  of  a  ship  has 
authority  to  borrow  money  on  the  credit  of  its  owner,  if  it 
is  necessary  to  enable  him  to  complete  the  voyage,  and  if 
neither  the  owner  nor  his  proper  agent  for  such  matters 
can  be  consulted  without  injurious  delay.  En.  March  21, 
1872. 

§  2375.     Authority   on    behalf  of   owners   of  cargo.     The 

master  of  a  ship,  during  a  voyage,  is  a  general  agent  for 
each  of  the  owners  of  the  cargo,  and  has  authority  to  do 
whatever  they  might  do  for  the  preservation  of  their  re- » 
spective  interests,  but  he  cannot  sell  or  hypothecate  the 
cargo,  except  in  the  cases  mentioned  in  this  article.  En. 
March  21,  1872.     Am'd.  1873-4,  251. 

§  2376.  Power  to  make  contracts.  The  master  of  a  ship 
may  procure  all  its  necessary  repairs  and  supplies,  may 


485  PARTICULAR    AGENCIES.  §§  2377-2382 

engage  cargo  and  passengers  for  carriage,  and,  in  a  foreign 
port,  may  enter  into  a  charter  party;  and  his  contracts 
for  these  purposes  bind  the  owner  to  the  full  amount  of 
the  value  of  the  ship  and  freightage.     En.  March  21,  1872. 

§  2377.  Power  to  hypothecate.  The  master  of  a  ship 
may  hypothecate  the  ship,  freightage,  and  cargo,  and  sell 
part  of  the  cargo,  in  the  cases  prescribed  by  the  chapters 
on  bottomry  and  respondentia,  and  in  no  others,  except 
that  the  master  may  also  sell  the  cargo  or  any  part  of  It, 
short  of  the  port  of  destination,  if  found  to  be  of  such 
perishable  nature,  or  in  such  damaged  condition  that,  if  left 
on  board  or  reshipped,  it  would  be  entirely  lost,  or  would 
seriously  endanger  the  interests  of  its  owners,  liin.  March 
21,  1872.     Am'd.  1873-4,  252. 

See  post,  sees.  3017  et  seq. 

§  2378.  Master's  power  to  sell  ship.  When  a  ship, 
whether  foreign  or  domestic,  is  seriously  Injured,  or  the 
voyage  is  otherwise  broken  up,  beyond  the  possibility  of 
pursuing  it,  the  master,  in  case  of  necessity,  may  sell  the 
ship  without  instructions  from  the  owners,  unless  by  the 
earliest  use  of  ordinary  means  of  communication  he  can 
inform  the  owners,  and  await  their  instructions.  En.  March 
21,  1872. 

§  2379.  Master's  power  to  sell  cargo.  The  master  of  a 
ship  may  sell  the  cargo,  if  the  voyage  is  broken  up  beyond 
the  possibility  of  pursuing  it,  and  no  other  ship  can  be 
obtained  to  carry  it  to  its  destination,  and  the  sale  Is  other- 
wise absolutely  necessary.    En.  March  21,  1872. 

Compare  post,  sec.  2707. 

§  2380.  Authority  to  ransom  ship.  The  master  of  a  ship, 
in  case  of  its  capture,  may  engage  to  pay  a  ransom  for  it, 
in  money  or  in  part  of  the  cargo,  and  his  engagement  will 
bind  the  ship,  freightage,  and  cargo.     En.  March  21,  1872. 

§  2381.  Abandonment  terminates  master's  power.  The 
power  of  the  master  of  a  ship  to  bind  its  owner,  or  the 
owners  of  the  cargo,  ceases  upon  the  abandonment  of 
the  ship  and  freightage  to  insurers.     En.  March  21,  1872. 

§2382.  Personal  liability  for  contracts  concerning  the 
ship.     Unless   otherwise   expressly   agreed,   or   unless   the 


§§  23S3-23S9  PARTICULAR     AGENCIES.  4S6 

contracting  parties  give  exclusive  credit  to  the  owner, 
the  master  of  a  ship  is  personally  liable  upon  Lis  contracts 
relative  thereto  even  when  the  owner  is  also  liable.  En. 
March  21,  1872. 

Personal  liability  of  agent:     See  ante,  sec.  23-13. 

§  2383.  Liability  for  acts  of  persons  employed  upon  the 
ship.  The  master  of  a  ship  is  liable  to  third  persons  for 
the  acts  or  negligence  of  persons  employed  in  its  naviga- 
tion, whether  appointed  by  him  or  not,  to  the  same  extent 
as  the  owner  of  the  ship.    En.  March  21,  1872. 

§2384.  Responsibility  for  negligence  of  pilot.  The  own- 
er or  master  of  a  ship  is  not  responsible  for  the  negligence 
of  a  pilot  whom  he  is  bound  by  law  to  employ;  but  if  he 
is  allowed  an  option  between  pilots,  some  of  whom  are  com- 
petent, or  is  required  only  to  pay  compensation  to  a  pilot, 
whether  he  employs  him  or  not,  he  is  so  responsible  to 
third  persons.     En.  March  21,  1872. 

See  ante,  sec.  2338. 

§2385.  Obligations  cf  shipowner  to  owner  of  cargo  sold. 
The  owner  of  a  ship  is  bound  to  pay  to  the  owner  of  her 
cargo  the  market  value  at  the  time  of  arrival  of  tne  ship 
at  the  port  of  her  desination,  of  tnat  portion  of  her  cargo 
which  has  been  sold  to  enable  the  master  to  pay  the  neces- 
sary repairs  and  supplies  of  the  ship.  En.  Stats.  1873-4, 
252. 

ARTICLE    IV. 

SHIPS'     MANAGERS. 

§   2388.      What  powers  manager  has. 
§   23S9.      What  powers  he  has  not. 

§  2388.  What  poV(/ers  manager  has.  A  ship's  manager 
has  power  to  make  contracts  requisite  for  tlie  perform- 
ance of  his  duties  as  such;  to  enter  into  charter-parties,  or 
make  contracts  for  carriage;  and  to  settle  for  ireigntage 
and  adjust  averages.     En.  March  21,  1872. 

Cal.Rep.Cit.   61,  429  ;   109,  99. 

Ships'  managers:     See  ante,  sees.  2070-2072. 

§  2389.  V/hat  powers  he  has  not.  Without  special  au- 
thority, a  ship's  manager  cannot  borrow  money  or  give 
up  the  lien  for  freightage,  or  purchase  a  cargo,  or  bind 
the  owners  of  the  ship  to  an  insurance.    En.  March  21,  1872. 


487 


PARTNERSHIP     IN     GENERAL. 


§§  2395-2397 


TITLE     X. 

PARTNERSHIP. 

Chapter  I.  Partnership  in  General,  §§  2395-2418. 

II.  General  Partnership,   §§   2424-2471. 

III.  Special  Partnership,  §§  2477-2510. 

IV.  Mining  Partnership,  §g  2511-2520. 

CHAPTER    I. 
PARTNERSHIP     IN    GENERAL. 

Article  I.  What  Constitutes  a  Partnership,  §§  2395-2397. 

II.  Partnership  Property,   §§  2401-2406. 

III.  Mutual  Obligations  of  Partners,  §§  2410-2413. 

IV.  Renunciation  of  Partnership,  §S  2417-2418. 


ARTICLE    I. 
WHAT     CONSTITUTES    A    PARTNERSHIP. 

§   2395.      Partnership,   what. 

§   2396.      Shipowners. 

§  2397.      Formation  of  partnership. 

§  2395.  Partnership,  what.  Partnership  is  the  associa- 
tion of  two  or  more  persons,  for  the  purpose  of  carrying 
on  business  together,  and  dividing  its  profits  between  them. 
En.  March  21,  1872. 

Cal.Rep.Cit.     75,  569;     81,     15;   101,  507;   104,  304;   122,     12; 
128,  126.. 

See  section  2445,  where  the  above  question  as  to  division 
of  profits  evidencing  partnership  is  settled. 

Dividing  profits  implies  division  of  losses:  Post,  ser. 
2404. 

§2396.  Shipowners.  Part  owners  of  a  ship  do  not,  by 
simply  using  it  in  a  joint  enterprise,  become  partners  as  to 
the  ship.    En.  March  21,  1872. 

Cal.Rep.Cit.   75,   569. 

§2397.  Formation  of  partnership.  A  partnership  can  be 
formed  only  by  the  consent  of  all  the  parties  thereto,  aad 
therefore,  no  new  partner  can  be  admitted  into  a  partner- 
ship without  the  consent  of  every  existing  member  thereof. 
En.  March  21,  1872. 

See  post,  sec.  2516. 


i§  2401-2405  PARTNERSHIP    IN    GENERAL.  488 

ARTICLE    II. 

PARTNERSHIP     PROPERTY. 

§  2401.  Partnership  property,  what. 

§  2402.  Partner's  interest  in  partnership  property, 

§   2403.  Partner's  share  in  profits  and  losses. 

§   2404.  When  division  of  losses  implied. 

I  2405.  Partner    may    require    application    of   partnership    property 

to  payment  of  debts. 

S  2406.  What  property  is  partnership  property  by  presumption. 

§  2401.  Partnership  property,  what.  The  property  of  a 
partnership  consists  of  all  that  is  contributed  to  the  com- 
mon stock  at  the  formation  of  the  partnership,  and  all  that 
is  subsequently  acquired  thereby.     En.  March  21,  1872. 

Cal.Rep.Cit.   104,   305. 

§  2402.  Partner's  interest  in  partnership  property.  The 
interest  of  each  member  of  a  partnership  extends  to  every 
portion  of  its  property.    En.  March  21,  1872. 

Cal.Rep.Cit.   104,  305;   123,  487. 

§  2403.  Partner's  share  in  profits  and  losses.  In  the  ab- 
sence of  any  agreement  on  the  subject,  the  shares  of  part- 
ners in  the  profit  or  loss  of  the  business  are  equal,  and  the 
share  of  each  in  the  partnership  property  is  the  value  of 
his  original  contribution,  increased  or  diminished  by  his 
share  of  profit  or  loss.    En.  March  21,  1872. 

Cal.Rep.Cit.   56,  450;   104,  305. 

Mining  partnerships. — Each  member  shares  In  the  profit 
and  loss  proportionably  to  the  interest  he  holds:  Post, 
sec.  2513. 

§2404.  When  division  of  losses  implied.  An  agreement 
to  divide  the  profits  of  a  business  implies  an  agreement 
for  a  corresponding  division  of  its  losses,  unless  it  is  other- 
wise expressly  stipulated.     En.  March  21,  1872. 

Cal.Rep.Cit.   81,  15  ;    89,  534  ;   112,  12. 

§2405.  Partner  may  require  application  of  partnership 
property  to  payment  of  debts.  Each  member  of  a  partner- 
ship may  require  its  property  to  be  applied  to  the  discharge 
of  its  debts,  and  has  a  lien  upon  the  shares  of  the  other 
partners  for  this  purpose,  and  for  the  payment  of  the  gen- 
eral balance  if  any  due  to  him.    En.  March  21,  1872. 

Cal.Rep.Cit.  58,   456. 


489  PARTNERSHIP    IN    (iENERAL.  §§  240G-2413 

§2406.  What  property  is  partnership  property  by  pre- 
sumption. Property,  whether  real  or  personal,  acquired 
with  partner(5hip  funds,  is  presumed  to  be  partnership  prop- 
erty.    En.  March  21,  1872. 


ARTICLE    III. 
MUTUAL  OBLIGATION   OF   PARTNERS. 

§  2410.  Partners  trustees  for  each  other. 

§   2411.  Good  faith  to  be  observed  between  them. 

§   2412.  Mutual  liability  of  partners  to   account. 

§  2413.  No  compensation  for  services  to  firm. 

§2410.  Partners  trustees  for  each  other.  The  relations 
of  partners  are  confidential.  They  are  trustees  for  each 
other  within  the  meaning  of  chapter  I  of  the  title  on  Trusts, 
and  their  obligations  as  such  trustees  are  defined  by  that 
chapter.     En.  March   21,  1872. 

§2411.  Good  faith  to  be  observed  between  them.  In  all 
proceedings  connected  with  the  formation,  conduct,  disso- 
lution, and  liquidation  of  a  partnership,  every  partner  is 
bound  to  act  in  the  highest  good  faith  toward  his  copart- 
ners. He  may  not  obtain  any  advantage  over  them  in  the 
partnership  affairs  by  the  slightest  misrepresentation,  con- 
cealment, threat,  or  adverse  pressure  of  any  kind.  En. 
March  21,  1872. 

Cal.Rep.Cit.   122,  460  ;   136,  463. 

See  post,  sees.  2436  et  seq. 

§2412.  IVlutual  liability  of  partners  to  account.  Each 
member  of  a  partnership  must  account  to  it  for  everything 
that  he  receives  on  account  thereof,  and  is  entitled  to  re- 
imbursement therefrom  for  everything  that  he  properly 
expends  for  the  benefit  thereof,  and  to  be  indemnified 
thereby  for  all  losses  and  risks 'which  he  necessarily  incurs 
on  its  behailf.     En.  March  21,  1872. 

Cal.Rep.Cit.   78,   231. 

Partners'  acts  bind  firm:     Post,  sec.  2429. 

§  2413.  No  compensation  for  services  to  firm.  A  part- 
ner is  not  entitled  to  any  compensation  for  services  ren- 
dered by  him  to  the  partnership.    En.  March  21,  1872. 

Cal.Rep.Cit.   68,  471 ;    135,  564. 


j§  2417-2424  GENEBaL    PARTNERSHIP.  «90 


ARTICLE    IV. 

RENUNCIATION    OF    PARTNERSHIP. 

S  2417.     Renunciation  of  future  prcQts  exonerates  from  liability. 
§  2418.     Effect  of  renunciation. 

§2417.  Renunciation  of  future  profits  exonerates  from 
liability.  A  partner  may  exonerate  himself  from  all  future 
liability  to  a  third  person,  on  account  of  the  partnership, 
by  renouncing,  in  good  faith,  all  participation  in  its  future 
profits,  and  giving  notice  to  such  third  person,  and  to  his 
own  copartners,  that  he  has  made  such  renunciation,  and 
that,  so  far  as  may  be  in  his  power,  he  dissolves  the  part- 
nership and  does  not  intend  to  be  liable  on  account  thereof 
for  the  future.    En.  March  21,  1872. 

Dissolution  of  partnership:     See  sees.  2449  et  seq. 

§  2418.  Effect  of  renunciation.  After  a  partner  has  given 
notice  of  his  renunciation  of  the  partnership,  he  cannot 
claim  any  of  its  subsequent  profits,  and  his  copartners 
may  proceed  to  dissolve  the  partnership.  En.  March  21, 
1872. 

CHAPTER    II. 

GENERAL    PARTNERSHIP. 

Article  I.  What  is  a  General  Partnership,  §  2424. 

II.  Powers  and  Authority  of  Partners,  §§  2428-2431. 

III.  Mutual  Obligations  of  Partners,  §§  2435-2438. 

IV.  Liability  of  Partners,   §§  2442-2445. 

V.      Termination  of  Partnership,  §§  2449-2454. 
VI.      Liquidation,  §§  2458-2462.  v 

VII.     Of  the  Use  of  Fictitious  Names,  §§  2466-2471. 

ARTICLE    I, 

WHAT    IS    A    GENERAL    PARTNERSHIP. 
§  2424.     General  partnership  what. 

§2424.  General  partnership  what.  Every  partnership 
that  is  not  formed  in  accordance  with  the  law  concerning 
special  or  mining  partnerships,  and  every  special  partner- 
ship so  far  only  as  the  general  partners  are  concerned,  is 
a  general  partnership.    En.  March  21,  1872. 

Cal.Rep.Cit.  74,  419. 

Special  partnerships:     See  post,  sees.  2477-2510. 

Mining  partnerships:     See  post,  sees.  2511-2520. 


481  GENERAL    PARTNERSHIP.  §§  242S-2-i3X 

ARTICLE    II.     • 

POWERS     AND     AUTHORITY    OF     PARTNERS. 

§   2428.  Power  of  majority  of  partuers. 

§   2429.  Authority  of   individual  partner. 

§   2430.  What  authority   partner   has   not. 

§  2431.  Partner's  acts  in  bad  faith,  when  ineffectual. 

§  2428.  Power  of  majority  of  partners.  Unless  other- 
wise expressly  stipulated,  the  decision  of  the  majority  of 
the  members  of  a  general  partnership  binds  it  in  the  con- 
duct of  its  business.     En.  March  21,  1872. 

Cal.Rep.Cit.   78.   229. 

Mining  partnerships:      Post,  sec.  2520. 

§2429.  Authority  of  individual  partner.  Every  general 
partner  is  agent  for  the  partnership  in  the  transaction  of 
its  business,  and  has  authority  to  do  whatever  is  necessary 
to  carry  on  such  business  in  the  ordinary  manner,  and  for 
this  purpose  may  bind  his  copartners  by  an  agreement  in 
writing.     En.  March  21,  1872. 

Cal.Rep.Cit.   65,  560  ;    71,  502  ;    89,  534. 

Common  liability  for  losses:     See  sec.  2412. 

§  2430.  What  authority  partner  has  not.  A  partner,  as 
such,  has  not  authority  to  do  any  of  the  following  acts,  un- 
less his  copartners  have  wholly  abandoned  the  business  to 
him,  or  are  incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnership  property 
or  any  portion  thereof  to  a  creditor,  or  to  a  third  person  in 
trust 'for  the  benefit  of  a  creditor  or  of  all  creditors; 

2.  To  dispose,  of  the  good-will  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership  property 
at  once,  unless  it  consists  entirely  of  merchandise; 

4.  To  do  any  act  which  would  make  it  impossible  to  carry 
on  the  ordinary  business  of  the  partnership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of  the  pre- 
ceding section.     En.  March  21,  1872. 

Cal.Rep.Cit.      80,   321;      81,   17;      90,      87;    124,   432.     Subd.   3— 
65,  560;      71,  502. 

§  2431.  Partner's  acts  in  bad  faith,  when  ineffectual. 
A  partner  is  not  bound  by  any  act  of  a  copartner  in  bad 


§8  2435-2438  GENERAL    PARTNERSHIP.  492 

faith  toward  him,  though  within  the  scope  of  the  partner's 
powers,  except  in  favor  of  persons  who  have  in  good  faith 
parted  with  value  in  reliance  upon  such  act.  En.  March 
21,  1872. 

Cal.Rep.Clt.  131,  7. 

Good  faith,  duty  to  observe:     See  ante,  sec.  2411. 


ARTICLE    TIL 

MUTUAL    OBLIGATIONS    OF    PARTNERS. 

§  2435.  Profits  of  individual  partner. 

§  2436.  In  what  business  partner  may  not  engage. 

§  2437.  In  what  he  may  engage. 

§  2438.  Must  account  to  firm  for  profits. 

§  2435.  Profits  of  individual  partner.  All  profits  made  by 
a  general  partner,  in  the  course  of  any  business  usually  car- 
ried on  by  the  partnership,  belong  to  the  firm.  En,  March 
21,  1872. 

Cal.Rep.Cit.  109.  132. 

§2436.     In   what   business   partner   may   not   engage.     A 

general  partner,  who  agrees  to  give  his  personal  attention 
to  the  business  of  the  partnership,  may  not  engage  in  any 
business  which  gives  him  an  interest  adverse  to  that  of  the 
partnership,  or  which  prevents  him  from  giving  to  such 
business  all  the  attention  which  would  be  advantageous  to 
it.  En.  March  21,  1872. 
See  post,  sec.  2438. 

§  2437.  In  what  he  nnay  engage.  A  partner  may  engage 
in  any  separate  business,  except  as  otherwfse  provided  loy 
the  last  two  sections.    En.  March  21,  1872. 

§  2438.  Must  account  to  firm  for  profits.  A  general  part- 
ner transacting  business  contrary  to  the  provisions  of  this 
article  may  be  required  by  any  copartner  to  account  to  the 
partnership  for  the  profits  of  such  business-.  En.  March 
21,  1872. 

Cal.Rep.Cit.  109,  132. 


493  GENERAL     PARTNERSHIP.  §§  2442-2449 

ARTICLE    IV. 

LIABILITY    OP    PARTNERS. 

§   2442.  Liability  of  partners  to  third  persons. 

§   2443.  Liability  for  each  other's  acts  as  agents. 

§   2444.  Liability  of  one  held  out  as  partner. 

S   2445.  No  one  liable  as  partner  unless  held  out  as  such. 

§2442.  Liability  of  partners  to  third  persons.  Every 
general  partner  is  liable  to  third  persons  for  all  the  obli- 
gations of  the  partnership,  jointly  with  his  copartners.  En. 
March  21,  1872. 

Cal.Rep.Cit.   63,  158;   69,  620;   89,  370;   89,  534. 

§2443.  Liability  for  each  other's  acts  as  agents.  The 
liability  of  general  partners  for  each  other's  acts  is  defined 
by  the  title  on  Agency.     En.  March  21,  1872. 

Cal.Rep.Cit.   89,  534  ;    114,  399  ;    131,  7. 

See  ante,  sees.  2429,  2430. 

§2444.  Liability  of  one  held  out  as  partner.  Any  one 
permitting  himself  to  be  represented  as  a  partner,  general 
or  special,  is  liable,  as  such  to  third  persons  to  whom  such 
representation  is  communicated,  and  who,  on  the  faith 
thereof,  give  credit  to  the  partnership.    En.  March  21,  1872. 

Cal.Rep.Cit.   122,  613;   122,  614. 

§2445.  No  one  liable  as  partner  unless  held  out  as  such. 
No  one  is  liable  as  a  partner  who  is  not  such  in  fact,  except 
as  provided  in  the  last  section.     En.  March  21,  1872. 

Cal.Rep.Cit.   122,   614. 

ARTICLE    V. 

TERMINATION     OF    PARTNERSHIP. 

§  2449.  Duration  of  partnership. 

§   2450.  Total   dissolution  of  partnership. 

§   2451.  Partial  dissolution. 

§   2452.  Partner  entitled  to  dissolution. 

§   2453.  Notice  of  termination. 

§  2454.  Notice  by  change  of  name. 

§2449.  Duration  of  partnership.  If  no  term  is  pre- 
scribed by  agreement  for  its  duration,  a  general  partner- 
ship continues  until  dissolved  by  a  partner  or  by  operation 
of  law.    En.  March  21,  1872. 

Dissolution  of  special  partnership:     See  post,  sec.  2509. 


{§2450-2453  GEXIORAL    PARTNERSHIP.  494 

§  2450.  Total  dissolution  of  partnership.  A  general  part- 
nership is  dissolved  as  to  all  the  partners: 

1.  By  lapse  of  the  time  prescribed  by  agreement  for  its 
duration; 

2.  By  the  expressed  will  of  any  partner,  if  there  is  no 
such  agreement; 

3.  By  the  death  of  a  partner; 

4.  By  the  transfer  to  a  person,  not  a  partner,  of  the  in- 
terest of  any  partner  in  the  partnership  property; 

5.  By  war,  or  the  prohibition  of  commercial  intercourse 
between  the  country  in  which  one  partner  resides  ajad  that 
in  which  another  resides;  or, 

6.  By  a  judgment  of  dissolution.    En.  March  21,  1872. 

Cal.Rep.Cit.   89,  550;   104,  305. 

Partner's  power  after  dissolution  of  firm:  See  post,  sees. 
2458  et  seq. 

§2451.  Partial  dissolution.  A  general  partnership  may 
be  dissolved,  as  to  himself  only,  by  the  expressed  will  of 
any  partner,  notwithstanding  his  agreement  for  its  con- 
tinuance, subject,  however,  to  liability  to  his  copartners 
for  any  damage  caused  to  them  thereby,  unless  the  circum- 
stances are  such  as  entitle  him  to  a  judgment  of  dissolution. 
En.  March  21,  1872. 

§  2452.  Partner  entitled  to  dissolution.  A  general  part- 
ner is  entitled  to  a  judgment  of  dissolution: 

1.  When  he,  or  another  partner,  becomes  legally  in- 
capable of  contracting; 

2.  When  another  partner  fails  to  perform  his  duties  un- 
der the  agreement  of  partnership,  or  is  guilty  of  serious 
misconduct;  or, 

3.  When  the  business  of  the  partnership  can  be  carried 
on  only  at  a  permanent  loss.    En.  March  21,  1872. 

§2453.  Notice  of  termination.  The  liability  of  a  gen- 
eral partner  for  the  acts  of  his  copartners  continues,  even 
after  a  dissolution  of  the  copartnership,  in  favor  of  persons 
who  have  had  dealings  with  and  given  credit  to  the  part- 
nership during  its  existence,  until  they  have  had  personal 
notice  of  the  dissolution;  and  in  favor  of  other  persons 
until  such  dissolution  has  been  advertised  in  a  newspaper 


495  GENERAL    PARTNERSHIP.  §§  2454-2461 

published  in  every  county  where  the  partnership,  at  the 
time  of  its  dissolution,  had  a  place  of  business,  if  a  news- 
paper is  there  published,  to  the  extent  in  either  case  to 
which  such  persons  part  with  value  in  good  faith,  and  in 
the  belief  that  such  partner  is  still  a  member  of  the  firm. 
En.  March  21,  1872. 

Cal.Rep.Cit.   112,  382;   112.  383. 

Compare  sec.  2509,  post. 

§  2454.  Notice  by  change  of  name.  A  change  of  the 
partnership  name,  which  plainly  indicates  the  withdrawal 
of  a  partner  is  sufficient  notice  of  the  fact  of  such  with- 
drawal to  all  persons  to  v/hom  it  is  communicated;  but  a 
change  in  the  name,  which  does  not  contain  such  an  in- 
dication is  not  notice  of  the  withdrawal  of  any  partner. 
En.  March  21,  1872. 

ARTICLE    VL 

LIQUIDATION. 

§   2458.  Powers  of  partners  alter  dissolution. 

§   2459.  Who  may  act  in  liquidation. 

§   2460.  Who  may  not  act  in  liquidation. 

§  2461.  Powers  of  partners  in  liquidation. 

I   2462.  What  partner  may  do  in   liquidation. 

§  2458.  Powers  of  partners  after  dissolution.  After  the 
dissolution  of  a  partnership,  the  powers  and  authority  of 
the  partners  are  such  only  as  are  prescribed  by  this  article. 
En.  March  21,  1872. 

Cal.Rep.Cit.   81,  IS;   89,  551. 

§2459.  Who  may  act  in  liquidation.  Any  member  of  a 
general  partnership  may  act  in  liquidation  of  its  affairs, 
except  as  provided  by  the  next  section.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,  420  ;   81.  18. 

§  2460.  Who  may  not  act  in  liquidation.  If  the  liquida- 
tion of  a  partnership  is  committed,  by  consent  of  all  the 
partners,  to  one  or  more  of  them,  the  others  have  no  right 
to  act  therein;  but  their  acts  are  valid  in  favor  of  persons 
parting  with  value,  in  good  faith,  upon  credit  thereof.  En. 
March  21,  1872. 

Cal.Rep.Cit.   74.  420;   93.  126. 

§2461.  Powers  of  partners  in  liquidation.  A  partner  au- 
thorized to  act  in  liquidation  may  collect,  compromise,  or 


§§2462-2i67  GENERAL    PARTNERSHIP.  496 

release  any  debts  due  to  the  partnership,  pay  or  compro- 
mise any  claims  against  it,  and  dispose  of  the  partnership 
property.     En.  March  21,  1872. 

Cal.Rep.Cit.   74,  420;   81,  18;   84,  92;   84,  94. 

§2462.  What  partner  may  do  in  liquidation.  A  partner 
authorized  to  act  in  liquidation  may  indorse,  in  the  name 
of  the  firm,  promissory  notes,  or  other  obligations  held  by 
the  partnership,  for  the  purpose  of  collecting  the  same,  but 
he  cannot  create  any  new  obligation  in  its  name,  or  revive 
a  debt  against  the  firm,  by  an  acknowledgment  when  an 
action  thereon  is  barred  under  the  provisions  of  the  Code 
of  Civil  Procedure.     En.  March  21,  1872.    Am'd.  1873-4,  252. 

Cal.Rep.Cit.  89,  551. 

ARTICLE    VII. 

OF    THE    USE    OF    FICTITIOUS    NAMES. 

§  2466.  Fictitious  name  ;   duties  of  those  using. 

§  2467.  Style  of  foreign  partnership. 

§   2468.  Certificate,  execution,   filing,  etc. 

g  2469.  New  certificates  on  change  of  partner. 

§  2470.  Register  of  such  firms  to  be  kept  by  county  clerk. 

§  2471.  Certified  copies  of  register,  and  proof  of  publication,  to  be 
evidence. 

§2466.  Fictitious  name;  duties  of  those  using.  Except 
as  otherwise  provided  in  the  next  section  every  partnership 
transacting  business  in  this  state  under  a  fictitious  name,, 
or  a  designation  not  showing  the  names  of  the  persons 
interested  as  partners  in  such  business,  must  file  v/ith  tne 
clerk  of  the  county  in  which  its  principal  place  of  business 
is  situated  a  certificate  stating  the  names  in  full  of  all  the 
members  of  such  partnership  and  their  places  of  residence, 
and  publish  the  same  once  a  week,  for  four  successive 
weeks,  in  a  newspaper  published  in  the  county,  if  there 
be  one,  and  if  there  be  none  in  such  county,  then  in  a  news- 
paper published  in  an  adjoining  county.  En.  March  21, 
1872.     Am'd.  1873-4,  253. 

Cal.Rep.Cit.  56,  161;  56,  263;  56,  264;  64,     73;  67,     26; 

til,  636;  70,399;  74,153;  74,156;  74,588;  81,283; 

82,584;  85.143;  88,601;  88,647;  89,106;  92,226; 

93,  126;  101,     90;  118.     17;  135,  622;  135,  623. 

§2467.  Style  of  foreign  partnership.  A  commercial  or 
banking  partnership,  established  and  transacting  business 
in  a  place  without  the  United  States,  may,  without  filing 


497  GENERAL,    PARTNERSHIP.  §§  24C8-2470 

the  certificate,  or  making  tlie  publication  prescribed  in 
the  last  section,  use  in  this  state  the  partnership  name  used 
by  it  there,  although  it  be  fictitious,  or  do  not  show  the 
names  of  the  persons  interested  as  partners  in  such  busi- 
ness.    En.  March  21,  1872.     Am'd.  1873-4,  253. 

Cal.Rep.Cit.   67,   636. 

§2468.  Certificate,  execution,  filing,  etc.  The  certificate 
filed  with  the  clerk,  as  provided  in  section  twenty-four  hun-, 
dred  and  sixty-six,  must  be  signed  by  the  partners,  and 
acknowledged  before  some  officer  authorized  to  take  the 
acknowledgment  of  conveyances  of  real  property.  Where 
the  partnership  is  hereafter  formed,  the  certificate  must 
be  filed,  and  the  publication  designated  in  that  section  must 
be  made  within  one  month  after  the  formation  of  the  part- 
nership, or  within  one  month  from  the  time  designated  in 
the  agreement  of  its  members  for  the  commencement  of 
the  partnership;  where  the  partnership  has  been  heretofore 
formed,  the  certificate  must  be  filed,  and  the  publication 
made  within  six  months  after  the  passage  of  this  act.  Per- 
sons doing  business  as  partners  contrary  to  the  provisions 
of  this  article  shall  not  maintain  any  actioif  upon  or  on 
account  of  any  contracts  made  or  transactions  had  in  their 
partnership  name,  in  any  court  of  this  state,  until  they  have 
first  filed  the  certificate  and  made  the  publication  herein 
required.    En.  March  21,  1872.    Am'd.  1873-4,  253. 


Cal.Rep.Cit 

64,     74 

77,     72 

118,     17 


56,  161 

67,     26 

81,  283 

135,  622 


§2469.     New  certif 


56,  162;  56,  264;  61,  156 

67,  636;  70,  399;  74,  154 

89,  106;  93,  126;  101,     90 
135,  623. 


64,     73 

74,  588 

111.  138 


Icates  on  change  of  partner.  On  every 
change  in  the  members  of  a  partnership  transacting  busi- 
ness in  this  state  under  a  fictitious  name,  or  a  designation 
which  does  not  show  the  names  of  the  persons  interested 
as  partners  in  its  business,  except  in  the  cases  mentioned 
in  section  twenty-four  hundred  and  sixty-seven,  a  new  cer- 
tificate must  be  filed  with  the  county  clerk,  and  a  new 
publication  made,  as  required  by  this  article  on  the  forma- 
tion of  such  partnership.  En.  March  21,  1872.  Am'd.  1873-4, 
254. 

Cal.Rep.Cit.  93,   178. 

§  2470.  Register  of  such  firms  to  be  kept  by  county  clerk. 
Every  county  clerk  must  keep  a  register  of  the  names  of 


§§  2471-2478  SPECIAL    PARTNERSHIP.  498 

firms  and  persons  mentioned  in  the  certificates  filed  with 
him,  pursuant  to  this  article,  entering  in  alphabetical  order 
the  name  of  every  such  partnership,  and  of  each  partner 
therein.     En.  March  21,  1872.     Am'd.  1873-4,  254. 

§2471.  Certified  copies  of  register,  and  proof  of  publica- 
tion, to  be  evidence.  '  Copies  of  the  entries  of  a  county 
clerk,  as  herein  directed,  when  certified  by  him,  and  affi- 
davits of  publication,  as  herein  directed,  made  by  the 
printer,  publisher,  or  chief  clerk  of  a  newspaper,  are  pre- 
sumptive evidence  of  the  facts  therein  stated.  En.  March 
21,  1872. 

Cal.Rep.Cit.   93,   178. 

CHAPTER    III. 
SPECIAL    PARTNERSHIP. 

Article  I.  Formation  of  Partnersliip,   J§  2477-2485. 

II.  Powers,  Riglits,  and  Duties  o£  the  Partners,  §§  2489-2496. 

III.  Liability  of  Partners,   §§  2500-2503. 

IV.  Alteration    and   Dissolution   of   tlie   Partnership,    §§  2507- 

2510. 

,  ARTICLE    I. 

FORMATION    OF    PARTNERSHIP. 

§  2477.  Formation  of  special  partnership. 

§  2478.  Of  what  to  consist. 

§   2479.  Certified  statement. 

§  2480.  Acknowledged  and  recorded.     False  statement. 

§  2481.  Affidavit  as  to  sums  contributed. 

§  2482.  No  partnership  until  compliance. 

§  24S3.  Certificate  to  be  published. 

§  2484.  Affidavit  of  publication  filed. 

§  2485.  Renewal   of   special   partnership. 

§  2477.  Formation  of  special  partnership.  A  special 
partnership  may  be  formed  by  two  or  more  persons  in  the 
manner  and  with  the  effect  prescribed  in  this  chapter,  for 
the  transaction  of  any  business  except  banking  or  insur- 
ance.    En.  March  21,  1872. 

Cal.Rep.Cit.  74,  419  ;   128,  128. 

Fraud  in  partnership  matters  a  misdemeanor:  Pen.  Code, 
sec.  358. 

§  2478.  Of  what  to  consist.  A  special  partnership  may 
consist  of  one  or  more  persons  called  general  partners,  and 
one  or  more  persons  called  special  partners.     En.  March 

21,  1872. 

Cal.Rep.Cit.   128,  128. 


499  SPECIAL    PAKTiXERSHIP.  §§  2479-2482 

§  2479.  Certified  statement.  Persons  desirous  of  form- 
ing a  special  partnersiiip  must  severally  sign  a  certificate, 
stating: 

1.  The  name  under  which  the  partnership  is  to  be  con- 
ducted; 

2.  The  general  nature  of  the  business  intended  to  be 
transacted; 

3.  The  names  of  all  the  partners,  and  their  residences, 
specifying  which  are  general  and  which  are  special  part- 
ners; 

4.  The  amount  of  capital  which  each  special  partner  has 
contributed  to  the  common  stock; 

5.  The  periods  at  which  such  partnership  will  begin  and 
end.    En.  March  21,  1872. 

§  2480.  Acknowledged  and  recorded.  False  statement. 
Certificates  under  the  last  section  must  be  acknowledged 
by  all  the  partners,  before  some  ofiicer  authorized  to  take 
acknowledgment  of  deeds,  one  to  be  filed  in  the  clerk's 
office,  and  the  other  recorded  in  the  office  of  the  recorder 
of  the  county  in  which  the  principal  place  of  business  of 
the  partnership  is  situated,  in  a  book  to  be  kept  for  that 
purpose,  open  to  public  inspection;  and  if  the  partnership 
has  places  of  business  situated  in  different  counties,  a  copy 
of  the  certificate  certified  by  the  recorder  in  whose  office 
it  is  recorded,  must  be  filed  in  the  clerk's  office,  and  re- 
corded in  like  manner  in  the  office  of  the  recorder  in  every 
such  county.  If  any  false  statement  is  made  in  any  such 
certificate,  all  the  persons  interested  in  the  partnership 
are  liable,  as  general  partners,  for  all  the  engagements 
thereof.     En.  March  21,  1872. 

§  2481.-  Affidavit  as  to  sums  contributed.  An  affidavit  of 
each  of  the  partners,  stating  that  the  sums  specified  in 
the  certificate  of  the  partnership  as  having  been  con- 
tributed by  each  of  the  special  partners,  have  been  actually 
and  in  good  faith  paid,  in  the  lawful  money  of  the  United 
States,  must  be  filed  in  the  same  office  with  the  original 
certificate.    En.  March  21,  1872. 

§2482.  No  partnership  until  compliance.  No  special 
partnership  is  formed  until  the  provisions  of  the  last  five 
sections  are  complied  with.    En.  March  21,  1872. 


§§  2433-2490  SPECIAL    PARTNERSHIP.  500 

§2483.  Certificate  to  be  published.  The  certificate  men- 
tioned in  this  article,  or  a  statement  of  its  substance,  must 
be  published  in  a  newspaper  printed  in  the  county  where 
the  original  certificate  is  filed,  and  if  no  newspaper  is  there 
printed,  then  in  a  newspaper  in  the  state  nearest  thereto. 
Such  publication  must  be  made  once  a  week  for  four  suc- 
cessive weeks,  beginning  within  one  week  from  the  time 
of  filing  the  certificate.  In  case  such  publication  is  not  so 
made,  the  partnership  must  be  deemed  general.  En.  March 
21,  1872, 

§  2484.  Affidavit  of  publication  filed.  An  affidavit  of  the 
making  of  the  publication  mentioned  in  the  preceding  sec- 
tion, made  by  the  printer,  publisher,  or  chief  clerk  of  the 
newspaper  in  which  such  publication  is  made,  may  be  filed 
with  the  county  recorder  with  whom  the  original  certifi- 
cate was  filed,  and  is  presumptive  evidence  of  the  facts 
therein  stated.    En.  March  21,  1872, 

§  2485.  Renewal  of  special  partnership.  Every  renewal 
or  continuance  of  a  special  partnership  must  be  certified, 
recorded,  verified,  and  published  in  the  same  manner  as 
upon  its  original  formation.    En.  March  21,  1872. 

Cal.Rep.Cit.   128,   128. 

Compare  with  sec.  2507,  post. 


ARTICLE    11. 

POWERS,    RIGHTS,   AND    DUTIES    OF    THE   PARTNERS. 

§  2489.  Who  to  do  business. 

§  2490.  Special  partners  may  advise. 

§  2491.  May  loan  money.      Insolvency. 

§  2492.  General  partners  may  sue  and  be  sued. 

§  2493.  Withdrawal  of  capital. 

§  2494.  Interest  and  profits. 

§  2495.  Result  of  withdrawing  capital. 

§  2496.  Preferential  transfer  void. 

§  2489.  Who  to  do  business.  The  general  partners  only 
have  authority  to  transact  the  business  of  a  special  part- 
nership.   En.  March  21,  1872, 

§  2490,  Special  partners  may  advise.  A  special  partner 
may  at  all  times  investigate  the  partnership  affairs,  and 
advise  his  partners,  or  their  agents,  as  to  their  manage- 
ment.    En.  March  21,  1872. 


501  SPECIAL    PARTNERSHIP.  §§  2491-2496 

§  2491.  May  loan  money.  Insolvency.  A  special  part- 
ner may  lend  money  to  the  partnership,  or  advance  money 
for  it,  and  take  from  it  security  therefor,  and  as  to  such 
loans  or  advances  has  the  same  rights  as  any  other  credi- 
tor; but  in  case  of  the  insolvency  of  the  partnership,  all 
other  claims  which  he  may  have  against  it  must  be  post- 
poned until  all  other  creditors  are  satisfied.  En.  March 
21,  1S72. 

§  2492.     General  partners  may  sue  and   be  sued.     In  all 

matters  relating  to  a  special  partnership,  its  general  part- 
ners maj''  sue  and  be  sued  alone,  in  the  same  manner  as  if 
there  were  no  special  partners.    En.  March  21,  1872. 

§2493.  Withdrawal  of  capital.  No  special  partner,  un- 
der any  pretense,  may  withdraw  any  part  of  the  capital  in- 
vested by  him  in  the  partnership,  during  its  continuance. 
En.  March  21,  1872. 

See  sec.  2495,  post. 

§  24G4.  Interest  and  profits.  A  special  partner  may  re- 
ceive such  lawful  interest  and  such  proportion  of  profits  as 
may  be  agreed  upon,  if  not  paid  out  of  the  capital  invested 
in  the  partnership  by  him,  or  by  some  other  special  part- 
ner, and  is  not  bound  to  refund  the  same  to  meet  subse- 
quent losses.    En.  March  21,  1872. 

§2495.  Result  of  withdrawing  capital.  If  a  special  part- 
ner withdraws  capital  from  the  firm,  contrary  to  the  pro- 
visions of  this  article,  he  thereby  becomes  a  general 
partner.    En.  March  21,  1872. 

See  sec.  2493. 

§  2496.  Preferential  transfer  void.  Every  transfer  of 
the  property  of  a  special  partnership,  or  of  a  partner 
therein,  made' after  or  in  contemplation- of  the  insolvency 
of  such. partnership  or  partner,  with  intent  to  give  a  prefer- 
ence to  any  creditor  of  such  partnership  or  partner  over 
any  other  creditor  of  such  partnership,  is  void  against  the 
creditors  thereof;  and  every  judgment  confessed,  lien  cre- 
ated, or  security  given,  in  like  manner  and  with  the  like 
intent,  is  in  like  manner  void.    En.  March  21,  1872. 


5§  2500-2503  SPECIAL    PARTNERSHIP.  602 

ARTICLE    III. 

LIABILITY    OF    PARTNERS. 

S  2500.  Liability  of  partners. 

§  2501.  Of  special  partners. 

§  2502.  Liability  for  unintentional  act. 

§  2503.  Wbo  may  question  existence  of  special  partnership. 

§2500.  Liability  of  partners.  The  general  partners  In 
a  special  partnership  are  liable  to  the  same  extent  as  part- 
ners in  a  general  partnership.    En.  March  21,  1872. 

§2501.  Of  special  partners.  The  contribution  of  a  spe- 
cial partner  to  the  capital  of  the  firm,  and  the  increase 
thereof,  is  liable  for  its  debts,  but  he  is  not  otherwise  liable 
therefor,  except  as  follows: 

1.  If  he  has  willfully  made  or  permitted  a  false  or  mate- 
rially defective  statement  in  the  certificate  of  the  partner- 
ship, the  affidavit  filed  therewith,  or  the  published  an- 
nouncement thereof,  he  is  liable  as  a  general  partner,  to  all 
creditors  of  the  firm; 

2.  If  he  has  willfully  interfered  with  the  business  of  the 
firm,  except  as  permitted  in  article  II  of  this  chapter,  he  is 
liable  in  like  manner;  or, 

3.  If  he  has  willfully  joined  in  or  assented  to  an  act  con- 
trary to  any  of  the  provisions  of  article  II  of  this  chapter, 
he  is  liable  in  like  manner.    En.  March  21,  1872. 

False  certificate:     See  sees.  2480  and  2482,  ante. 

§2502.  Liability  for  unintentional  act.  When  a  special 
partner  has  unintentionally  done  any  of  the  acts  mentioned 
in  the  last  section,  he  is  liable,  as  a  general  partner,  to  any 
creditor  of  the  firm  who  has  been  actually  misled  thereby 
to  his  prejudice.    En.  March  21,  1872. 

§  2503.  Who  may  question  existence  of  special  partner- 
ship. One  who,  upon  making  a  contract  with  a  partner- 
ship, accepts  from  or  gives  to  it  a  written  memorandum  of 
the  contract,  stating  that  the  partnership  is  special,  and 
giving  the  names  of  the  special  partners,  cannot  afterward 
charge  the  persons  thus  named  as  general  partners  upon 
that  contract,  by  reason  of  an  error  or  defect  in  the  pro- 
ceedings for  the  creation  of  the  special  partnership,  prior 


603  SPECIAL    PARTNERSHIP.  §§  2507-2509 

to  the  acceptance  of  the  memorandum,  if  an  effort  has  been 
made  by  the  partners,  in  good  faith,  to  form  a  special  part- 
nership in  the  manner  required  by  article  I  of  this  chapter. 
En.  March  21,  1872. 


.  ARTICLE    rV. 

ALTERATION    AND    DISSOLUTION. 

§  2507.  When  special  partnership  becomes  general. 

§  2508.  How  new  special  partners  may  be  admitted. 

§  2509.  Dissolution  of  special  partnerships.     Notice. 

§  2510.  The  name  of  a  special  partner  not  used,  unless. 

§2507.     When   special   partnership   becomes  general.     A 

special  partnership  becomes  general  if,  within  ten  days 
after  any  partner  withdraws  from  it,  or  any  new  partner  is 
received  into  it,  or  a  change  is  made  in  the  nature  of  its 
business  or  in  its  name,  a  certificate  of  such  tact,  duly 
verified  and  signed  by  one  or  more  of  the  partners,  is  not 
filed  with  the  county  clerk  and  recorder  with  whom  the 
original  certificate  of  the  partnership  was  filed,  and  notice 
thereof  published  as  is  provided  in  article  I  of  this  chapter 
for  the  publication  of  the  certificate.    En.  March  21,  1872. 

§  2508.  How  new  special  partners  may  be  admitted.  New 
special  partners  may  be  admitted  into  a  special  partner- 
ship upon  a  certificate,  stating  the  names,  residences,  and 
contributions  to  the  common  stock  of  each  of  such  partners, 
signed  by  each  of  them,  and  by  the  general  partners  veri- 
fied, acknowledged,  or  proved,  according  to  the  provisions 
of  article  I  of  this  chapter,  and  filed  with  the  county  clerk 
and  recorder  with  whom  the  original  certificate  of  the 
partnership  was  filed.    En.  March  21,  1872. 

§  2509.  Dissolution  c-f  special  partnerships.  Notice.  A 
special  partnership  is  subject  to  dissolution  in  the  same 
manner  as  a  general  partnership,  except  that  no  dissolu- 
tion, by  the  act  of  the  partners,  is  complete  until  a  notice 
thereof  has  been  filed  and  recorded  in  the  office  of  the 
county  clerk  and  recorder  with  whom  the  original  certifi- 
cate was  recorded,  and  published  once  in  each  week,  for 
four  successive  weeks,  in  a  newspaper  printed  in  each 
county  where  the  partnership  has  a  place  of  business.  En. 
March  21,  1872. 


J§  2510-2514  MINING    PARTNERSHIP.  604 

Dissolution  of  general  partnership:  See  ante,  sees.  2450 
et  seq. 

§2510.     The  name  of  a  special  partner  not  used,  unless. 

The  name  of  a  special  partner  must  not  be  used  in  the 
firm  name  of  partnership,  unless  it  be  accompanied  with 
the  word  "limited."    En.  March  21,  1872. 

CHAPTER    IV. 

MINING    PARTNERSHIPS. 

§  2511.  When  a  mining  partnership  exists. 

§   2512.  Express  agreement  not  necessary  to  constitute. 

§  2513.  Profits  and  losses,  how  shared. 

§   2514.  Lien  of  partners. 

§  2515.  Mine — Partnership  property. 

§  2516.  Pai'tnership  not  dissolved  by  sale  of  interest. 

I  2517.  Purchaser  takes,  subject  to  lieus,  unless,  etc 

§  2518.  Takes  with  notice  of  lien,  when. 

§   2519.  Contract  in  writing,  when  binding. 

§  2520.  Owners  of  majority  of  shares  govern. 

§2511.  When  a  mining  partnership  exists.  A  mining 
partnership  exists  when  two  or  more  persons  who  own  or 
acquire  a  mining  claim  for  the  purpose  of  working  it  and 
extracting  the  mineral  therefrom  actually  engage  in  work- 
ing the  same.    En.  March  21,  1872. 

Cal.Rep.Cit.     81,     16;     89,  372;   107,  510;   121,  215;  127,  521; 
128.  127, 

§2512.  Express  agreement  not  necessary  to  constitute. 
An  express  agreement  to  become  partners  or  to  share  the 
profits  and  losses  of  mining  is  not  necessary  to  the  forma- 
tion or  existence  of  a  mining  partnership.  The  relation 
arises  from  the  ownership  of  shares  or  interests  in  the 
mine  and  working  the  same  for  the  purpose  of  extracting 
the  minerals  therefrom.    En.  March  21,  1872. 

Cal.Rep.Cit.  89,  372;   107,  511;   127,  521. 

§  2513.  Profits  and  losses,  how  shared.  A  member  of  a 
mining  partnership  shares  in  the  profits  and  losses  thereof 
in  the  proportion  which  the  interest  or  share  he  owns  in 
the  mine  bears  to  the  whole  partnership  capital  or  whole 
number  of  shares.    En.  March  21,  1872. 

Cal.Rep.Cit.   89,   371. 

§  2514.  Lien  of  partners.  Each  member  of  a  mining 
partnership  has  a  lien  on  the  partnership  property  for  the 


505  MINING    PARTNERSHIP.  §§  2515-2020 

debts  due  the  creditors  thereof,  and  for  money  advanced 
by  him  for  its  use.  This  lien  exists  notwithstanding  there 
is  an  agreement  among  the  partners  that  it  must  not.  En. 
March  21,  1872. 

Cal.Rep.Cit.   66,  578;   89,  371. 

Corresponding  sections  as  to  general  partners:  See  sec. 
2405,  ante;  see  also  sees.  2517,  2518,  post. 

§2515.  Mine — Partnership  property.  The  mining  ground 
owned  and  w'orked  by  partners  in  mining,  whether  pur- 
chased with  partnership  funds  or  not,  is  partnership  prop- 
erty.    En.  March  21,  1872. 

§2516.  Partnership  not  dissolved  by  sale  of  interest. 
One  of  the  partners  in  a  mining  partnership  may  convey 
his  interest  in  the  mine  and  business  without  dissolving 
the  partnership.  The  purchaser,  from  the  date  of  his  pur- 
chase, becomes  a  member  of  the  partnership.  En.  March 
21,  1872. 

Termination  of  partnership  generally:  See  sees.  2449  et 
seq. 

§2517.  Purchaser  takes,  subject  to  liens,  unless,  etc.  A 
purchaser  of  an  interest  in  the  mining  ground  of  a  mining 
partnership  takes  it  subject  to  the  liens  existing  in  favor 
of  the  partners  for  debts  due  all  creditors  thereof,  or  ad- 
vances made  for  the  benefit  of  the  partnership,  unless  he 
purchased  in  good  faith,  for  a  valuable  consideration,  with- 
out notice  of  such  lien.    En.  March  21,  1872. 

§2518.  Takes  with  notice  of  lien,  when.  A  purchaser 
of  the  interest  of  a  partner  in  a  mine  when  the  partnership 
is  engaged  in  working  it,  takes  with  notice  of  all  liens  re- 
sulting from  the  relation  of  the  partners  to  each  other  and 
to  the  creditors  of  the  partnership.    En.  March  21,  1872. 

§  2519.  Contract  in  writing,  when  binding.  No  member 
of  a  mining  partnership  or  other  agent  or  manager  thereof 
can,  by  a  contract  in  writing,  bind  the  partnership,  ex- 
cept by  express  authority  derived  from  the  members 
thereof.     En.  March  21,  1872. 

§2520.     Owners  of  majority  of  shares  govern.     The  de- 
cision of  the  members  owning  a  majority  of  the  shares  or 
Civ.  Code— 22 


5  2527  INSURANCE    IN    GENERAL.  506 

interests  in  a  mining  partnership  binds  it  in  the  conduct 
of  its  business.     En.  March  21,  1S72. 

Cal.Rep.Cit.  89,   371. 

Majority  of  members  in  general  partnerships:  Sec.  2428, 
ante. 


■TITLE    XI. 

INSURANCE. 

Chapter  I.  Insurance  in  General,  §§2527-2649. 

li.  Marine  Insurance,  §§  2655-2746. 

III.  Fire  Insurance,  §§2752-2757. 

IV.  Life  and  Health  Insurance,  §§  2762-2766. 

CHAPTER    I. 

INSURANCE    IN    GENERAL. 

Article  I.  Definition  of  Insurance,  §  2527. 

II.  What  may  be  Insured,  §§  2531-2534. 

III.  Parties,  §§  2538-2542. 

IV.  Insurable  Interest,  §§  2546-2558. 

V.  Concealment  and  Representations,   §§  2561-2583. 

VI.  The  Policy,   §  2586-2599. 

VII.  Warranties,   §§  2603-2612. 

VIII.  Premium,   §§  2616-2622. 

IX.  Loss,   §§  2626-2629. 

X.  Notice  of  Loss,   §§  2633-2637. 

XI.  Double  Insurance,  §§  2641-2642. 

XII.  Reinsurance,  §§  2646-2649. 


ARTICLE    I. 

DEFINITION    OP    INSURANCE. 
§  2527.    Insurance,  what. 

§  2527.  Insurance,  what.  Insurance  is  a  contract  where- 
by one  undertakes  to  indemnify  another  against  loss,  dam- 
age, or  liability,  arising  from  an  unknown  or  contingent 
event.    En.  March  21,  1872. 

Cal.Rep.Cit.   107,  330  ;   125,  611. 

Insurance  corporations:    See  sees.  414  et  seq. 

OflBce  and  duties  of  insurance  commissiouers:  Pol.  Code, 
sees.  594-634.  Destruction  of  insured  property:  Pen.  Code, 
sec.  548.     Arson;    Pen,  Code,  sees.  447-455. 


507  INSURANCE     IN     GENERAL.  §§  2531-2534 

ARTICLE    II. 

WHAT    MAY    BE    INSURED, 

§  2531.  What  events  may  be  insured  against. 

§   2532.  Insurance   of    lottery   or    lottery   prize   unauthorized. 

§   2533.  Usual  liinds  of  insurance. 

§  2534.  All  subject  to  this  chapter. 

§2531.  What  events  may  be  insured  against.  Any  con- 
tingent or  unknown  event,  whether  past  or  future,  which 
may  damnify  a  person  having  an  insurable  interest,  or  cre- 
ate a  liability  against  him,  may  be  insured  against,  sub 
ject  to  the  provisions  of  this  chapter.     En.  March  21,  1872 

Cal.Rep.Cit.   107,   330. 

Insurable  interest:  See  post,  sees.  2546  et  seq.,  2659  et 
seq. 

§  2532.  Insurance  of  lottery  or  lottery  prize  unauthor- 
ized. The  preceding  section  does  not  authorize  an  insur- 
ance for  or  against  the  drawing  of  any  lottery,  or  for  or 
against  'any  chance  or  ticket  in  a  lottery  drawing  a  prize. 
En.  March  21,  1872. 

Lotteries:    Pen.  Code,  sees.  324,  326. 

§  2533.  Usual  kinds  of  insurance.  The  most  usual  kinds 
of  insurance  are: 

1.  Marine  insurance; 

2.  Fire  insurance; 

3.  Life  insurance; 

4.  Health  insurance;  and, 

5.  Accident  insurance.     En.  March  21,  1872. 
Marine  insurance:    See  post,  sees.  2655  et  seq. 
Fire  insurance:    See  post,  sees.  2752  et  seq. 

Life  and  health  insurance:    See  post,  sees.  2762  et  seq. 

§2534.  All  subject  to  this  chapter.  All  kinds  of  insur- 
ance are  subject  to  the  provisions  of  this  chapter.  En. 
March  21,  1872. 

ARTICLE    III. 

PARTIES    TO    THE    CONTRACT. 

§  2538.  Designation  of  parties. 

§   2539.  Who  may  insure. 

§   2540.  Who  may  be  insured. 

§   2541.  Assignment  to  mortgagee  of  thing  insured. 

§   2542.  New  contract  between  insurer  and  assignee. 


8§  2538-2542  INSURANCE    IN    GENERAL.  508 

§  2538.  Designation  of  parties.  The  person  who  under- 
takes to  indemuify  another  by  a  contract  of  insurance  is 
called  the  insurer,  and  the  person  indemnified  is  called  the 
insured.     En.  March  21,  1872. 

§  2539.  Who  may  insure.  Any  one  capable  of  making  a 
contract  may  be  an  insurer,  subject  to  the  restrictions  im- 
posed by  special  statutes  upon  foreign  corporations,  non- 
residents, and  others.     En.  March  21,  1872. 

§  2540.     Who  may  be  insured.     Any  one  except  a  public 

enemy  may  be  insured.     En.  March  21,  1872. 

§2541.     Assignment     to     mortgagee     of    thing     insured. 

Where  a  mortgagor  of  property  effects  insurance  in  his 
own  name,  providing  that  the  loss  shall  be  payable  to  the 
mortgagee,  or  assigns  a  policy  of  insurance  to  the  mort- 
gagee, the  insurance  is  deemed  to  be  upon  the  interest  of 
the  mortgagor,  who  does  not  cease  to  be  a  party  to  the 
original  contract,  and  any  act  of  his  which  would  otherwise 
avoid  the  insurance  will  have  the  same  effect,  although  the 
property  is  in  the  hands  of  the  mortgagee.  En.  March 
21,  1872. 

Cal.Rep.Cit.   128,   19;   136,  547. 

§  2542.  New  contract  between  insurer  and  assignee.  If 
an  insurer  assents  to  the  transfer  of  an  insurance  from  a 
mortgagor  to  a  mortgagee,  and,  at  the  time  of  his  assent, 
imposes  further  obligations  on  the  assignee,  making  a  new 
contract  with  him,  the  acts  of  the  mortgagor  cannot  affect 
his  rights.  En.  March  21.  1872. 

ARTICLE    rV. 
INSURABLE    INTEREST. 

§  2546.  Insurable  interest,  what. 

§  2547.  In  what  may  consist. 

§  2548.  Interest  of  carrier  or  depositary. 

§  2549.  Mere  expectancies. 

§   2550.  Measure  of  interest  in  property. 

§   2551.  Insurance  without  interest,  illegal. 

§  2552.  When  interest  must  exist. 

§  2553.  Effect  of  transfer. 

§   2554.  Transfer  a^ter  loss. 

§  2555.  Exception  in  the  case  of  several  subjects  In  one  policy. 

§  2556.  In  case  of  the  death  of  the  insurer. 

§  2557.  In  the  case  of  transfer  between  cotenants. 

i  2558.  Policy,  when  void. 


509  INSURANCE     IN    GENERAL.  §§  2546-2551 

§  2546.  insurable  interest,  what.  Every  interest  in 
property,  or  any  relation  tliereto,  or  liability  in  respect 
thereof,  of  such  a  nature  that  a  contemplated  peril  might 
directly  damnify  the  insured,  is  an  insurable  interest.  En. 
March  21,  1872. 

Partner:    See  post,  sec.  2590. 

Bailees,  etc.:    See  sec.  2548,  infra. 

Future  products  insurable:    See  sec.  2549,  infra. 

Life  insurance:    See  post,  sees.  2762,  2763. 

Stating  insurer's  interests  in  policy:  See  post,  sees. 
2568,  2587. 

§2547.  in  what  may  consist.  An  insurable  interest  in 
property  may  consist  in: 

1.  An  existing  interest; 

2.  An  inchoate  interest  founded  on  an  existing  interest; 
or, 

3.  An  expectancy,  coupled  with  an  existing  interest  in 
that  out  of  which  the  expectancy  arises.  En.  March  21, 
1872: 

§2548.  Interest  of  carrier  or  depositary.  A  carrier  or 
depositary  of  any  kind  has  an  insurable  interest  in  a  thing 
held  by  him  as  such,  to  the  extent  of  its  value.  En.  March 
21,  1872. 

§  2549.  Mere  expectancies.  A  mere  contingent  or  ex- 
pectant interest  in  anything,  not  founded  on  an  actual  right 
to  the  thing,  nor  upon  any  valid  contract  for  it,  is  not  in- 
surable.   En.  March  21,  1872. 

§  2550.  Measure  of  interest  in  property.  The  measure 
of  an  insurable  interest  in  property  is  the  extent  to  which 
the  insured  might  be  damnified  by  loss  or  injury  thereof. 
En.  March  21,  1872. 

See  also  next  section. 

Measure  of  indemnity  in  marine  insurance:  See  post, 
sec.  2736. 

§  2551.  Insurance  without  interest,  illegal.  The  sole  ob- 
ject of  insurance  is  the  indemnity  of  the  insured,  and  if  he 
has  no  insurable  interest  the  contract  is  void.  En.  March 
21.  1872. 


15  2552-2557  INSURANCE     IN     GENERAL.  510 

§2552.  When  interest  must  exist.  An  interest  insured 
must  exist  wiien  the  insurance  takes  effect,  and  wtien  the 
loss  occurs,  but  need  not  exist  in  ttie  mean  time.  En. 
Marcli  21,  1872. 

§  2553.  Effect  of  transfer.  Except  in  the  cases  speci- 
fied in  the  next  four  sections,  and  in  the  cases  of  life,  acci- 
dent, and  health  insurance,  a  change  of*  interest  in  any 
part  of  a  thing  insured,  unaccompanied  by  a  corresponding 
change  of  interest  in  the  insurance,  suspends  the  insur- 
ance to  an  equivalent  extent,  until  the  interest  in  the 
thing  and  the  interest  in  the  insurance  are  vested  in  the 
same  person.    En.  March  21,  1872. 

Transfer  by  partner:    See  sec.  2557,  infra. 

Transfer  by  operation  of  law:    Sec.  2556,  infra. 

Transfer  of  thing  insured  does  not  transfer  policy:  See 
post,  sec.  2593. 

Transfer  of  life  insurance  policy:     See  post,  sec.  2764. 

§  2554.  Transfer  after  loss.  A  change  of  interest  in  a 
thing  insured,  after  the  occurrence  of  an  injury  which  re- 
sults in  a  loss,  does  not  affect  the  right  of  the  insured  to 
indemnity  for  the  loss.     En.  March  21,  1872. 

§  2555.  Exception  In  the  case  of  several  subjects  in  one 
policy.  A  change  of  interest  in  one  or  more  of  several 
distinct  things,  separately  insured  by  one  policy,  does  not 
avoid  the  insurance  as  to  the  others.    En.  March  21,  1872. 

§  2556.  In  case  of  the  death  of  the  insurer.  A  change  of 
interest,  by  will  or  succession,  on  the  death  of  the  insured, 
does  not  avoid  an  insurance;  and  his  interest  in  the  insur- 
ance passes  to  the  person  taking  his  interest  in  the  thing 
insured.    En.  March  21,  1872. 

§  2557.  In  the  case  of  transfer  between  cotenants.  A 
transfer  of  interest  by  one  of  several  partners,  joint  own- 
ers, or  owners  in  common,  who  are  jointly  insured,  to  the 
others,  does  not  avoid  an  insurance,  even  though  it  has 
been  agreed  that  the  insurance  shall  cease  upon  an  aliena- 
tion of  the  thing  insured.    En.  March  21,  1872. 

Insurance  by  partner  or  cotenant:    See  post,  sec.  2590. 


511  INSURANCE    IN    GENERAL.  §§  2558-2563 

g  2558.  Policy,  when  void.  Every  stipulation  in  a  policy 
of  insurance  for  the  payment  of  loss,  whether  the  person 
insured  has  or  has  not  any  interest  in  the  property  in- 
sured, or  that  the  policy  shall  be  received  as  proof  of  such 
interest,  and  every  policy  executed  by  way  of  gaming  or 
wagering,  is  void.    En.  Stats.  1873-4,  255. 

ARTICLE    V. 

CONCEALMENT    AND    REPRESENTATIONS. 

§  2561.  Concealment,  what. 

§  2562.  Effect  of  concealment. 

§  2563.  What  must  be  disclosed. 

§  2564.  Matters  which  need  not  be  commtinlcated  without  Inquiry. 

§  2565.  Test  of  materiality. 

I  2566.  Matters  which  each  is  bound  to  know. 

§   2567.  Waiver  of  communication. 

§  2568.  Interest  of  insured. 

§  2569.  Fraudulent  warranty. 

I  2570.  Matters  of  opinion. 

§   2571.  Representation,  what. 

§   2572.  When  made. 

§  2573.  How  interpreted. 

§  2574.  Representations  as  to  future. 

§  2575.  How  may  affect  policy. 

§  2576.  When  may  be  withdrawn. 

§   2577.  Time  intended  by  representation. 

§   2578.  Representing  information. 

§  2579.  Falsity. 

§  2580.  Effect  of  falsity. 

§  2581.  Materiality. 

§  2582.  Application  of  provisions  ol  this  article. 

§  2583.  Right  to  rescind. 

§2561.  Concealment,  what.  A  neglect  to  communicate 
that  which  a  party  knows,  and  ought  to  communicate,  is 
called  a  concealment.    En.  March  21,  1872. 

Cal.Rep.Cit.  80,  443. 

Concealment. — "Party"  refers  to  either  party  to  the  con- 
tract:   See  sec.  2563,  infra. 

Concealment  in  marine  insurance:  See  post,  sees.  2669 
et  seq. 

§  2562.  Effect  of  ccncealnnent.  A  concealment,  whether 
intentional  or  unintentional,  entitles  the  injured  party  to 
rescind  a  contract  of  insurance.    En.  March  21,  1872. 

Cal.Rep.Cit.  80,   443. 

§  2583.  What  must  be  disclosed.  Each  party  to  a  con- 
tract of  insurance  must  communicate  to  the  other,  in  good 
faith,  all  facts  within  his  knowledge  which  are  or  which  he 


§§  2564-2567  INSURANCE    IN    GENERAL,  612 

believes  to  be  material  to  the  contract,  and  which  the  other 
has  not  the  means  of  ascertaining,  and  as  to  which  he 
makes  no  warranty.    En.  March  21,  1872. 

Cal.Rep.Cit.   SO,   443. 

§  2564.  Matters  which  need  not  be  communicated  with- 
out inquiry.  Neither  party  to  a  contract  of  insurance  is 
bound  to  communicate  information  of  the  matters  follow- 
ing, except  in  answer  to  the  inquiries  of  the  other: 

1.  Those  which  the  other  knows; 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the 
other  ought  to  know,  and  of  which  the  former  has  no 
reason  to  suppose  him  ignorant; 

3.  Those  of  which  the  other  waives  communication; 

4.  Those  which  prove  or  tend  to  prove  the  existence  of 
a  risk  excluded  by  a  warranty,  and  which  are  not  otherwise 
material;  and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy, 
and  which  are  not  otherwise  material.    En.  March  21,  1872. 

Cal.Rep.Cit.   125,   350. 

Waiver  of  communication:    See  infra,  sec.  2567. 
Facts  covered  by  warranty:    See  infra,  sec.  2569. 

§2565.  Test  of  materiality.  Materiality  is  to  be  deter- 
mined not  by  the  event,  but  solely  by  the  probable  and 
reasonable  influence  of  the  facts  upon  the  party  to  whom 
the  communication  is  due,  in  forming  his  estimate  of  the 
disadvantages  of  the  proposed  contract,  or  in  making  his 
inquiries.     En.  March  21,  1872. 

Materiality  of  representation:    See  infra,  sec.  2581. 

§  2566.  iVIatters  which  each  is  bound  to  know.  Each 
party  to  a  contract  of  insurance  is  bound  to  know  all  the 
general  causes  which  are  open  to  his  inquiry,  equally  with 
that  of  the  other,  and  which  may  affect  either  the  political 
or  material  perils  contemplated;  and  all  general  usages 
of  trade.    En.  March  21,  1872. 

§2567.  Waiver  of  communication.  The  right  to  Infor- 
mation of  material  facts  may  be  waived,  either  by  the 
terms  of  insurance  or  by  neglect  to  make  inquiries  as  to 
such  facts,  where  they  are  distinctly  implied  in  other  facts 
of  which  information  is  communicated.  En.  March  21, 
1872. 


513  INSURANCE     IN     GENERAL.  §§  2568-2576 

§  2568.  Interest  cf  insured.  Information  of  the  nature 
or  amount  of  the  interest  of  one  insured  need  not  be  com- 
municated unless  in  answer  to  an  inquiry,  except  as  pre- 
scribed by  section  25S7.    En.  March  21,  1872. 

§  2569.  Fraudulent  warranty.  An  intentional  and  fraud- 
ulent omission,  on  the  part  of  one  insured,  to  communicate 
information  of  matters  proving  or  tending  to  prove  the 
falsity  of  a  warranty,  entitles  the  insurer  to  rescind.  Eu, 
March  21,  1872. 

§2570.  Matters  of  opinion.  Neither  party  to  a  contract 
of  insurance  is  bound  to  communicate,  even  upon  inquiry, 
information  of  his  own  judgment  upon  the  matters  in 
question.     En.  March  21,  1872. 

§2571.  Representation,  what.  A  representation  may  be 
oral  or  written.     En.  March  21,  1872. 

Representations  in  marine  insurance:  Sees.  2676,  2677, 
post. 

§  2572.  When  made.  A  representation  may  be  made  at 
the  same  time  with  issuing  the  policy,  or  before  it.  En. 
March  21,  1872. 

"Warranties:    See  sees.  2603,  2604,  post. 

§  2573.  How  interpreted.  The  language  of  a  representa- 
tion is  to  be  interpreted  by  the  same  rules  as  the  language 
of  contracts  in  general.    En.  March  21,  1872. 

Interpretation  of  contracts:    See  ante,  sec.  1635. 

§  2574.  Representations  as  to  future.  A  representation 
as  to  the  future  is  to  be  deemed  a  promise,  unless  it  ap- 
pears that  it  was  merely  a  statement  of  belief  or  expecta- 
tion.   En.  March  21,  1872. 

§2575.  How  may  affect  policy.  A  representation  can- 
not be  allowed  to  qualify  an  express  provision  in  a  con- 
tract of  insurance;  but  it  may  qualify  an  implied  warranty. 
En.  March  21,  1872. 

§  2576.     When    may    be    withdrawn.      A    representation 

may  be  altered  or  withdrawn  before  the  insurance  is  ef- 
fected, but  not  afterwards.     En.  March  21.  1872. 


§S  2577-2583  INSURANCE    IN    GENERAL.  514 

§  2577.  Time  intended  by  representation.  The  comple- 
tion of  the  contract  of  insurance  is  the  time  to  which  a 
representation  must  be  presumed  to  refer.  En.  March  21, 
1872. 

§  2578.  Representing  information.  When  a  person  in- 
sured has  no  personal  knowledge  of  a  fact,  he  may  never- 
theless repeat  information  which  he  has  upon  the  subject, 
and  which  he  believes  to  be  true,  with  the  explanation  that 
he  does  so  on  the  information  of  others,  or  he  may  submit 
the  information,  in  its  whole  extent,  to  the  insurer;  and  in 
neither  case  is  he  responsible  for  its  truth,  unless  it  pro- 
ceeds from  an  agent  of  the  insured  whose  duty  it  is  to  give 
the  intelligence.    En.  March  21,  1872. 

§  2579.  Falsity,  A  representation  is  to  be  deemed  false 
when  the  facts  fail  to  correspond  with  its  assertions  or 
stipulations.    En.  March  21,  1872. 

§  2580.  Effect  of  falsity.  If  a  representation  is  false  in 
a  material  point  whether  affirmative  or  promissory,  the 
injured  party  is  entitled  to  rescind  the  contract  from  the 
time  when  the  representation  becomes  false.  En.  March 
21,  1872. 

Cal.Rep.Cit.   86,   251;   89,  208. 

§2581.  Materiality.  The  materiality  of  a  representation 
is  determined  by  the  same  rule  as  the  materiality  of  a 
concealment.    En.  March  21,  1872. 

Materiality  of  representation,  how  determined:  See 
ante,  sec.  2565. 

§2582.  Application  of  provisions  of  this  article.  The 
provisions  of  this  article  apply  as  well  to  a  modification  of 
a  contract  of  insurance  as  to  its  original  formation.  En. 
March  21,  1872. 

§  2583.  Right  to  rescind.  Whenever  a  right  to  rescind  a 
contract  of  insurance  is  given  to  the  insurer  by  any  pro- 
vision of  this  chapter,  such  right  may  be  exercised  at  any 
time  previous  to  the  commencement  of  an  action  on  the 
contact.     En.  Stats.  1873-4,  255. 

Cal.Rep.Cit.   89,   208. 

See  sec.  2609,  post. 


615  INSURANCE    IN    GENERAL.  8§  2586-2589 

ARTICLE    VI. 

THE    POLICY. 

§  2586.  Policy,  what. 

§  2587.  What  must  be  specified  in  a  policy. 

§  2588.  Whose  interest  is  covered. 

§  2589.  Insurance  by  agent  or  trustee. 

§  2590,  Insurance  by  part  owner. 

§  2591.  General  terms. 

§   2592.  Successive  owners. 

§  2593.  Transfer  of  the  thing  insured. 

§  2594.  Open  and  valued  policies. 

§  2595.  Open  policy,  what. 

§  2596.  Valued  policy,  what. 

§   2597.  Running  policy,   what. 

§  2598.  Effect  of  receipt. 

§  2599.  Agreement  not  to  transfer. 

§2586.  Policy,  what.  The  written  instrument,  in  which 
a  contract  of  insurance  is  set  forth,  is  called  a  policy  of 
insurance.    En.  March  21,  1872. 

§2587.  What  must  be  specified  in  a  policy.  A  policy  of 
insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is  made; 

2.  The  rate  of  premium; 

3.  The  property  or  life  insured; 

4.  The  interest  of  the  insured  in  property  Insured,  if  he 
is  not  the  absolute  owner  thereof; 

5.  The  risks  insured  against;  and, 

6.  The  period  during  which  the  insurance  is  to  continue. 
En.  March  21,  1872. 

Cal.Rep.Cit.   98,  7  ;   107.  330  ;   111,  411 ;   111,  412 ;   111,  413. 

§  2588.  Whose  interest  is  covered.  When  the  name  of 
the  person  intended  to  be  insured  is  specified  in  a  policy, 
it  can  be  applied  only  to  his  own  proper  interest.  En. 
March  21,  1872. 

Stating  interest  of  insured:    See  ante,  sec.  2568. 

Insurable  interest  generally:    See  ante,  sec.  2546. 

§2589.  insurance  by  agent  or  trustee.  When  an  insur- 
ance is  made  by  an  agent  or  trustee,  the  fac*^  that  his  prin- 
cipal or  beneficiary  is  the  person  really  insured  may  be 
indicated  by  describing  him  as  agent  or  trustee,  or  by 
other  general  words  in  the  policy.    En.  March  21,  1872. 


§5  2590-2597  INSURANCE    IN    GENERAL.  616 

§  2590.  Insurance  by  part  owner.  To  render  an  insur- 
ance, effected  by  one  partner  or  part  owner,  applicable  to 
the  interest  of  his  copartners,  or  of  bther  part  owners,  it 
is  necessary  that  the  terms  of  the  policy  should  be  such  as 
axe  applicable  to  the  joint  or  common  interest.  En.  March 
21,  1872. 

Transfer  of  policy  from  one  partner  to  another:  See 
ante,  sec.  2557. 

§2591.  General  terms.  When  the  description  of  the  in- 
sured in  a  policy  is  so  general  that  it  may  comprehend  any 
person  or  any  class  of  persons,  he  only  can  claim  the 
benefit  of  the  policy  who  can  show  that  it  was  intended  to 
include  him.     En.  March  21,  1872. 

Cal.Rep.Cit.   123,   224. 

§2592.  Successive  owners.  A  policy  may  be  so  framed 
that  it  will  inure  to  the  benefit  of  whomsoever,  during  the 
continuance  of  the  risk,  may  become  the  owner  of  the  in- 
terest insured.     En.  March  21,  1872. 

§2593.  Transfer  of  the  thing  insured.  The  mere  trans- 
fer of  a  thing  insured  does  not  transfer  the  policy,  but 
suspends  it  until  the  same  person  becomes  the  owner  of 
both  the  policy  and  the  thing  insured.     En.  March  21,  1872. 

Transfer  of  interest:  See  generally,  on  alienation  of  in- 
terest, sees.  2553  et  seq. 

§2594.  Open  and  valued  policies.  A  policy  is  either 
open  or  valued.    En.  March  21,  1872. 

§2595.  Open  policy,  what.  An  open  policy  is  one  in 
which  the  value  of  the  thing  insured  is  not  agreed  upon, 
but  is  left  to  be  ascertained  in  case  of  loss.  En.  March 
21,  1872. 

§2596.  Valued  policy,  what.  A  valued  policy  is  one 
which  expresses  on  its  face  an  agreement  that  the  thing 
insured  shall  be  valued  at  a  specified  sum.  En.  March  21, 
1872. 

Cal.Rep.Cit.  98,  7. 

Valuation  in  marine  insurance:    See  post,  sec.  2736. 

§2597.  Running  policy,  what.  A  running  policy  is  one 
which  contemplates  successive  insurances,  and  which  pro- 


517  INSURANCE     IN     GENERAL.  §§  2598-2605 

vides  that  the  object  of  the  policy  may  be  from  time  to 
time  defined,  especially  as  to  the  subjects  of  insurance,  by 
additional  statements  or  indorsements.    En.  March  21,  1872. 

§  2598.  Effect  of  receipt.  An  acknowledgment  in  a 
policy  of  the  receipt  of  premium  is  conclusive  evidence  of 
its  payment,  so  far  as  to  make  the  policy  binding,  notwith- 
standing any  stipulation  therein  that  it  shall  not  be  bind- 
ing until  the  premium  is  actually  paid.    En.  March  21,  1872. 

Cal.Rep.Cit.   83,  255;   83,  259;    132,  70;   132,  72. 

Premiums  in  general:     See  sees.  261G  et  seq.,  post. 

§  2599.  Agreement  not  to  transfer.  An  agreement  made 
before  a  loss,  not  to  transfer  the  claim  of  a  person  insured 
against  the  insurer,  after  the  loss  has  happened,  is  void. 
En.  March  21,  1872. 


ARTICLE    VII. 

WARRANTIES. 

§  2603.  Warranty,  express  or  implied. 

§  2604.  Form. 

§   2605.  Express  warranties  to  be  in  policy. 

§  2606.'  Past,  present,  and  future  warranties. 

§  2607.  Warranty  as  to  past  or  present. 

§  2608.  Warranty  as  to  the  future. 

§   2609.  Performance  excused. 

§  2610.  What  acts  avoid  the  policy. 

§  2611.  Policy  may  provide  for  avoidance. 

§  2612.  Breach  without  fraud. 

§  2603.  Warranty,  express  or  implied.  A  warranty  is 
either  express  or  implied.    En.  March  21,  1872. 

Cal.Rep.Cit.   122,   599. 

See  sec.  2G05,  infra. 

Implied  warranties  in  marine  Insurance:  See  sees.  2681 
et  seq.,  post. 

§  2604.  Form.  No  particular  form  of  words  is  necessary 
to  create  a  warranty.    En.  March  21,  1872. 

§  2605.  Express  warranties  to  be  in  policy.  Every  ex- 
press warranty,  made  at  or  before  the  execution  of  a  policy, 
must  be  contained  in  the  policy  itself,  or  in  another  instru- 
ment signed  by  the  insured,  and  referred  to  in  the  policy. 


8§  2606-2611  INSURANCE    IN    GENERAL.  518 

as  making  a  part  of  it.    En.  March  21,  1872.    Am'd.  1873-4, 
255. 

Cal.Rep.Cit.   89,   208. 

Representations:     See  ante,  sees.  2571  et  seq. 

§  2606.  Past,  present,  and  future  warranties.  A  war- 
ranty may  relate  to  the  past,  the  present,  the  future,  or  to 
any  or  all  of  these.    En.  March  21,  1872. 

§  2607.  Warranty  as  to  past  or  present.  A  statement  in 
a  policy,  of  a  matter  relating  to  the  person  or  thing  in- 
sured, or  to  the  risk,  as  a  fact,  is  an  express  warranty 
thereof.     En.  March  21,  1872. 

Cal.Rep.Cit.   66,  363  ;   67,  440  ;   88,  504. 

§  2608.  Warranty  as  to  the  future.  A  statement  in  a 
policy,  which  imports  that  it  is  intended  to  do  or  not  to  do 
a  thing  which  materially  affects  tlie  risk,  is  a  warranty 
that  such  act  or  omission  shall  take  place.  En.  March  21, 
1872. 

Cal.Rep.Cit.   137,  597. 

§  2609.  Performance  excused.  When  before  the  time  ar- 
rives for  the  performance  of  a  warranty  relating  to  the 
future,  a  loss  insured  against  happens,  or  performance  be- 
comes unlawful  at  the  place  of  the  contract,  or  impossible, 
the  omission  to  fulfill  the  warranty  does  not  avoid  the 
policy.     En.  March  21,  1872.    Am'd.  1873-4,  255. 

Rescinding  contract  of  insurance:  See  sec.  2583,  supra, 
as  to  the  time  when  the  right  to  rescind  may  be  exercised. 

§2610.  What  acts  avoid  the  policy.  The  violation  of  a 
material  warranty,  or  other  material  provision  of  a  policy, 
on  the  part  of  either  party  thereto,  entitles  the  other  to 
rescind.    En.  March  21,  1872. 

Cal.Rep.Cit.   86,   251. 

This  section  distinguishes  between  material  and  imma- 
terial warranties.  Heretofore  all  warranties  were  deemed 
material.  The  insurer  can,  however,  protect  himself,  un- 
der section  2611,  infra,  by  declaring  in  the  policy  that  vio- 
lation of  an  immaterial  warranty  will  avoid  the  contract. 

§  2611.  Policy  may  provide  for  avoidance.  A  policy  may 
declare  that  a  violation  of  specified  provisions  thereof  shall 


519  INSURANCE    IN    GENERAL.  §§  2612-2618 

avoid  it,  otherwise  the  breach  of  an  immaterial  provision 
does  not  avoid  the  policy.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  363;   67,  441;    112,  559;   122,  599. 

§  2612.  Breach  without  fraud.  A  breach  of  warranty, 
without  fraud,  merely  exonerates  an  insurer  from  the  time 
that  it  occurs,  or  where  it  is  broken  in  its  inception  pre- 
vents the  policy  from  attaching  to  the  risk.  En.  March 
21,  1872. 

Cal.Rep.Cit.   67,  440. 

Breach  of  warranty  without  fraud,  return  of  premium: 
See  sec.  2619,  post. 

ARTICLE   VIII. 

PREMIUM. 

§  2616.  When  premium  is  earned. 

§  2617.  Return   of  premium. 

§  2618.  When  not  allowed. 

§  2619.  Return  lor  fraud. 

§  2620.  Over-insurance  by   several   insurers. 

§  2621.  Contribution. 

§  2622.  Proportionate  contribution. 

§  2616.  When  premium  is  earned.  An  Insurer  is  entitled 
to  payment  of  the  premium  as  soon  as  the  thing  insured  is 
exposed  to  the  peril  insured  against.     En.  March  21,  1872. 

Receipt  in  policy,  how  far  conclusive  of  payment:  See 
sec.  2598,  ante. 

Cal.Rep.Cit.   86,   252. 

§  2617.  Return  cf  premium.  A  person  insured  is  en- 
titled to  a  return  of  premium,  as  follows: 

1.  To  the  whole  premium  if  no  part  of  his  interest  in  the 
thing  insured  be  exposed  to  any  of  the  perils  insured 
against. 

2.  Where  the  insurance  is  made  for  a  definite  period  of 
time,  and  the  insured  surrenders  his  policy,  to  such  pro- 
portion of  the  premium  as  corresponds  with  the  unexpired 
time,  after  deducting  from  the  whole  premium  any  claim 
for  loss  or  damage  under  the  policy  which  has  previously 
accrued.     En.  March  21,  1872.     Am'd.  1873-4,  256. 

Cal.Rep.Cit.   86,   251 ;    86,  252. 

Return  for  fraud:    See  sec.  2619,  infra. 

§  2618.  When  not  allowed.  If  a  peril  insured  against  has 
existed,  and  the  insurer  has  been  liable  for  any  period. 


§§  2619-2622  INSURANCE    IN    GENERAL.  520 

however  short,  the  insured  is  not  entitled  to  return  of  pre- 
miums, so  far  as  that  particular  risk  is  concerned.  En. 
March  21,  1872.    Am'd.  1873-4,  256. 

§  2619.  Return  for  fraud.  A  person  insured  is  entitled 
to  a  returu  of  the  premium  when  the  contract  is  voidable, 
on  account  of  the  fraud  or  misrepresentation  of  the  in- 
surer, or  on  account  of  facts,  of  the  existence  of  which  the 
insured  was  ignorant  without  his  fault;  or  when,  by  any 
default  of  the  insured  other  than  actual  fraud,  the  insurer 
never  incurred  any  liability  under  the  policy.  En.  March 
21,  1872. 

Cal.Rep.Cit.   86,   251. 

§  2620.  Over-insurance  by  several  insurers.  In  case  of 
an  over-insurance  by  several  insurers,  the  insured  is  en- 
titled to  a  ratable  return  of  the  premium,  proportioned  to 
the  amount  by  which  the  aggregate  sum  insured  in  all  the 
policies  exceeds  the  insurable  value  of  the  thing  at  risk. 
En.  March  21,  1872. 

Double  insurance  defined:    See  post,  sec.  2641. 

§  2621.  Contribution.  When  an  over-insurance  is  ef- 
fected by  simultaneous  policies,  the  insurers  contribute  to 
the  premium  to  be  returned  in  proportion  to  the  amount 
insured  by  their  respective  policies.    En.  March  21,  1872. 

Contribution  in  cases  of  double  insurance:  See  post, 
sec.  2642. 

§2622.  Proportionate  contribution.  When  an  over-insur- 
ance is  effected  by  successive  policies,  those  only  con- 
tribute to  a  return  of  the  premium  who  are  exonerated  by 
prior  insurances  from  the  liability  assumed  by  them,  and 
in  proportion  as  the  sum  for  which  the  premium  was  paid 
exceeds  the  amount  for  which,  on  account  of  prior  insur- 
ance, they  could  be  made  liable.    En.  March  21,  1872. 


ARTICLE    IX. 

LOSS. 

2626.  Perils,  remote  and  proximate. 

2627.  Loss  incurred  in  rescue  from  peril. 

2628.  Bxcepted  perils. 

2629.  Negligence  and  fraud. 


521  INSURANCE     IN     GENERAL.  §§  2626-2633 

§  2626.  Perils,  remote  and  proximate.  An  insurer  is 
liable  for  a  loss  of  which  a  peril  insured  against  was  the 
proximate  cause;  although  a  peril  not  contemplated  by  the 
contract  may  have  been  a  remote  cause  of  the  loss;  but  he 
is  not  liable  for  a  loss  of  which  the  peril  insured  against 
was  only  a  remote  cause.    En.  March  21,  1872. 

Negligence  of  insured:    See  sec.  2629,  infra. 

Perils  of  the  sea,  what  included:    See  sec.  2199,  ante. 

§  2627.  Loss  incurred  in  rescue  from  peril.  An  insurer 
is  liable  where  the  thing  insured  is  rescued  from  a  peril 
insured  against,  that  would  otherwise  have  caused  a  loss, 
if  in  "the  course  of  such  rescue  the  thing  is  exposed  to  a 
peril  not  insured  against,  which  permanently  deprives  the 
insured  of  its  possession,  in  whole  or  in  part;  or  where  a 
loss  is  caused  by  efforts  to  rescue  the  thing  insured  from 
a  peril  insured  against.    En.  March  21,  1872. 

§  2628.  Excepted  perils.  Where  a  peril  is  specially  ex- 
cepted in  a  contract  of  insurance,  a  loss,  which  would  not 
have  occurred  but  for  such  peril,  is  thereby  excepted;  al- 
though the  immediate  cause  of  the  loss  was  a  peril  which 
was  not  excepted.    En.  March  21,  1872. 

§2629.  Negligence  and  fraud.  An  insurer  is  not  liable 
for  a  loss  caused  by  the  willful  act  of  the  insured;  but  he 
is  not  exonerated  by  the  negligence  of  the  insured,  or  of 
his  agents  or  others.  En.  March  21,  1872.  Am'd.  1873-4, 
256. 

Cal.Rep.Cit.  67,  28;  76,  237;   112,  557;   112,  558;  112,  559. 

ARTICLE    X. 

NOTICE    OF    LOSS. 

§  2633.  Notice  of  loss. 

§  2634.  Preliminary  proofs. 

§  2635.  Waivers  of  defects  in  notice,  etc. 

§  2636.  Waiver  of  delay. 

§  2637.  Certificate,  when  dispensed  with. 

§  2633.  Notice  of  loss.  In  case  of  loss  upon  an  Insur- 
ance against  fire,  an  insurer  is  exonerated,  if  notice  thereof 
be  not  given  to  him  by  some  person  insured,  or  entitled  to 
the  benefit  of  the  insurance  without  unnecessary  delay.  En. 
March  21,  1872.     Am'd.  1873-4.  256. 


SS  2G34-2642  INSURANCE    IN    GENERAL.  522 

§2634.  Preliminary  proofs.  When  preliminary  proof  of 
loss  is  required  by  a  policy,  the  insured  is  not  bound  to 
give  such  proof  as  would  be  necessary  in  a  court  of  jus- 
tice; but  it  is  sufficient  for  him  to  give  the  best  evidence 
which  he  has  in  his  power  at  the  time.    En.  March  21, 1872. 

§  2635.  Waivers  of  defects  in  notice,  etc.  All  defects  in 
a  notice  of  loss,  or  in  preliminary  proof  thereof  which  the 
insured  might  remedy,  and  which  the  insurer  omits  to 
specify  to  him,  without  unnecessary  delay,  as  grounds  of 
objection,  are  waived.    En.  March  21,  1872. 

Cal.Rep.Cit.   98,   243. 

§  2636.  Waiver  of  delay.  Delay  in  the  presentation  to 
an  insurer  of  notice  or  proof  of  loss  is  waived,  if  caused  by 
any  act  of  his,  or  if  he  omits  to  make  objection  promptly 
and  specifically  upon  that  ground.    En.  March  21,  1872. 

§  2637.  Certificate,  when  dispensed  with.  If  a  policy  re- 
quires, by  way  of  preliminary  proof  of  loss,  the  certificate 
or  testimony  of  a  person  other  than  the  insured,  it  is  suffi- 
cient for  the  insured  to  use  reasonable  diligence  to  procure 
it,  and  in  case  of  the  refusal  of  such  person  to  give  it, 
then  to  furnish  reasonable  evidence  to  the  insurer  that 
such  refusal  was  not  induced  by  any  just  grounds  of  dis- 
belief in  the  facts  necessary  to  be  certified.  En.  March 
21,  1872. 

Cal.Rep.Cit.   88,  157. 

Presenting  false  proofs  for  policies:    Pen.  Code,  sec.  549. 


ARTICLE    XI. 

DOUBLE    INSURANCE. 

§  2641.      Double  Insurance. 

§   2642.      Contribution  in  case  of  double  insurance. 

§2641.  Double  insurance.  A  double  insurance  exists 
where  the  same  person  is  insured  by  several  insurers  sepa- 
rately in  respect  to  the  same  subject  and  interest.  En. 
March  21,  1872. 

§  2642.     Contribution    in  case   of  double    insurance.     In 

case  of  double  insurance,  the  several  insurers  are  liable  to 
pay  losses  thereon  as  follows: 


523  INSURANCE    IN    GENERAL.  §§  2646-2648 

1.  In  fire  insurance,  each  insurer  must  contribute  ratably 
towards  the  loss,  without  regard  to  the  dates  of  the  several 
policies. 

2.  In  marine  insurance,  the  liability  of  the  several  in- 
surers for  a  total  loss,  whether  actual  or  constructive, 
'^^•here  the  policies  are  not  simultaneous,  is  in  the  order  of 
the  dates  of  the  several  policies;  no  liability  attaching  to 
a  second  or  other  subsequent  policy  except  as  to  the  ex- 
cess of  the  loss  over  the  amount  of  all  previous  policies 
on  the  same  interest.  If  two  or  more  policies  bear  date 
upon  the  same  day,  they  are  deemed  to  be  simultaneous, 
and  the  liability  of  insurers  on  simultaneous  policies  is  to 
contribute  ratably  with  each  other.  The  insolvency  of  any 
of  the  insurers  does  not  affect  the  proportionate  liability 
of  the  other  Insurers.  The  liability  of  all  insurers  on  the 
same  marine  interest  for  a  partial  or  average  loss  is  to 
contribute  ratably.    En.  March  21,  1872.    Am'd.  1873-4,  257. 

Return  of  premium  by  successive  insurers:  See  sec. 
2622,  ante. 

Insurers  in  separate  policies  may  be  joined:  See  Code 
Civ.  Proc,  sec.  383- 

ARTICLE    XII. 

REINSURANCE. 

§  2646.  Reinsurance,  what. 

§   2647.  Disclosures  required. 

§   2648.  Reinsurance  presumed  to  be  against  liability. 

§  2649.  Original  insured  has  no  interest. 

§2646.  Reinsurance,  what.  A  contract  of  reinsurance  Is 
one  by  which  an  insurer  procures  a  third  person  to  insure 
him  against  loss  or  liability  by  reason  of  such  original  in- 
surance.   En.  March  21,  1872. 

Cal.Rep.Cit.   68,  432;   107,  330;   127,  470. 

§2647.  Disclosures  required.  Where  an  insurer  obtains 
reinsurance,  he  must  communicate  all  the  representations 
of  the  original  insured,  and  also  all  the  knowledge  and  in- 
formation he  possesses,  whether  previously  or  subsequently 
acquired,  which  are  material  to  the  risk.  En.  March  21, 
1872. 

§  2648.  Reinsurance  presumed  to  be  against  liability.  A 
reinsurance  is   presumed   to   be   a   contract   of   indemnity 


{§  2649-2659  MARINE    INSURANCE.  624 

against  liability,  and  not  merely  against  damage.  En. 
March  21.  1872. 

Cal.Rep.Cit.  107.   330. 

§2649.  Original  insured  has  no  interest.  The  original 
insured  has  no  Interest  in  a  contract  of  reinsurance.  En. 
March  21,  1872. 

Cal.Rep.Cit.  68,  433. 

CHAPTER    II. 

MARINE    INSURANCE. 

Article  I.  Definition  of  Marine  Insurance,  §  2655. 

U.  Insurable  Interest,   §§  2659-2665. 

III.  Concealment,   §§  2669-2672. 

IV.  Representations,   §§  2676-2677. 

V.  Implied   Warranties,    §§  2681-2688. 

VI.  The  Voyage,  and  Deviation.  §§  2692-2697. 

VII.  Loss,   §§  2701-2712. 

VIII.  Abandonment,   §§  2716-2732. 

IJC.  Measure   of    Indemnity,    §§  2736-2746. 

ARTICLE    I. 

DEFINITION    OF    MARINE    INSURANCE. 

§  2655.    Marine  insurance,  what. 

§  2655.  Marine  insurance,  wliat.  Marine  insurance  is  an 
insurance  against  risks  connected  with  navigation,  to 
which  a  ship,  cargo,  freightage,  profits,  or  other  insurable 
interest  in  movable  property,  may  be  exposed  during  a 
certain  voyage  or  a  fixed  period  of  time.  En.  March  21, 
1872. 

Insurable  interest:    See  ante,  sees.  2546-2557. 

ARTICLE    II. 
INSURABLE    INTEREST. 

§  2659.  Insurable  interest  in  a  ship. 

§  2660.  Interest  reduced  by  bottomry. 

§  2661.  Freightage,  what. 

i   2662.  Expected  freightage. 

§  2663.  Interest  in  expected  freightage,  wbaL 

§  2664.  Insurable  interest  in  profits. 

§  2665.  Insurable  interest  of  charterer. 

§  2659.  Insurable  interest  in  a  ship.  The  owner  of  a 
ship  has  in  all  cases  an  insurable  interest  in  it,  even  when 
it  has  been  chartered  by  one  who  covenants  to  pay  him  its 
value  in  case  of  loss.    En.  March  21,  1872. 


525  MARINE    INSURANCE.  §§  2660-2665 

§2660.  Interest  reduced  by  bottomry.  The  insuralple  in- 
terest of  the  owner  of  a  ship  hypothecated  by  bottomry  is 
only  the  excess  of  its  value  over  the  amount  secured  by 
bottomry.    En.  March  21,  1872. 

Insurable  interest  generally:    See  sees.  2546  et  seq. 

Bottomry  defined;  Post,  sec.  3017. 

§  2661.  Freightage,  what.  Freightage,  in  the  sense  of  a 
policy  of  marine  insurance,  signifies  all  the  benefit  derived 
by  the  owner  either  from  the  chartering  of  the  ship  or  its 
employment  for  the  carriage  of  his  own  goods  or  those  of 
others.    En.  March  21,  1872. 

Marine  insurance,  what:    See  sec.  2655.  ante. 

§  2662.  Expected  freightage.  The  owner  of  a  ship  has 
an  insurable  interest  in  expected  freightage  which  he 
would  have  certainly  earned  but  for  the  intervention  of  a 
peril  insured  against.    En.  March  21,  1872. 

§  2663.  Interest  In  expected  freightage,  what.  The  in- 
terest mentioned  in  the  last  section  exists,  in  the  case  of  a 
charter-party,  when  the  ship  has  broken  ground  on  the 
chartered  voyage,  and  if  a  price  is  to  be  paid  for  the  car- 
riage of  goods  when  they  are  actually  on  board,  or  there 
is  some  contract  for  putting  them  on  board,  and  both  ship 
and  goods  are  ready  for  the  specified  voyage.  En.  March 
21,  1872. 

§  2664.     Insurable   interest  in   profits.     One  who  has  an 

interest  in  the  thing  from  which  profits  are  expected  to 
proceed,  has  an  insurable  interest  in  the  profits.  En. 
March  21,  1872. 

§  2665.  Insurable  interest  of  charterer.  The  charterer 
of  a  ship  has  an  insurable  interest  in  it,  to  the  extent  that 
he  is  liable  to  be  damnified  by  its  loss.    En.  March  21,  1872. 


SS  2669-2672  MARINE    INSURANCE.  626 

ARTICLE    III. 

CONCEALMENT. 

§  2669.  Information  must  be  communicated. 

§  2670.  Material  information. 

§  2671.  Presumption  of  knowledge  of  loss. 

S  2672.  Concealments  which  only  affect  the  risk  in  question, 

§2669.  Information  must  be  communicated.  In  marine 
insurance  each  party  is  bound  to  communicate,  in  addition 
to  what  is  required  by  section  2563,  all  the  information 
which  he  possesses,  material  to  the  risk,  except  such  as  is 
mentioned  in  section  2564,  and  to  state  the  exact  and  whole 
truth  in  relation  to  all  matters  that  he  represents,  or  upon 
inquiry  assumes  to  disclose.     En.  March  21,  1872. 

Concealment  in  insurance  generally:  See  sees.  2561  et 
seq.;  in  marine  insurance,  sec.  2672. 

§  2670.  IVIaterial  information.  In  marine  insurance,  in- 
formation of  the  belief  or  expectation  of  a  third  person,  in 
reference  to  a  material  fact,  is  material.  En.  March  21, 
.1872. 

Representation  of  expectation  avoids  contract,  when: 
Post,  sec.  2677. 

§2671.  Presumption  of  knowledge  of  loss.  A  person  in- 
sured by  a  contract  of  marine  insurance  is  presumed  to 
have  had  knowledge,  at  the  time  of  insuring,  of  a  prior 
loss,  if  the  information  might  possibly  have  reached  him 
in  the  usual  mode  of  transmission,  and  at  the  usual  rate 
of  communication.    En.  March  21,  1872. 

§2672.  Concealments  which  only  affect  the  risk  in  ques- 
tion. A  concealment  in  a  marine  insurance,  in  respect  to 
any  of  the  following  matters,  does  not  vitiate  the  entire 
contract,  but  merely  exonerates  the  insurer  from  a  loss 
resulting  from  the  risk  concealed: 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  de- 
tention ; 

3.  The  liability  to  seizure  from  breach  of  foreign  laws 
of  trade; 

4.  The  want  of  necessary  documents;   and, 

5.  The  use  of  false  and  simulated  papers.  En.  March 
21,  1872. 


«2T  MARINE     INSURANCE.  §§  2076-2682 

ARTICLE    IV. 

REPRESENTATIONS. 

S  2676.     Effect  of  intentional  falsity. 
I  2677.     Representation  of  expectation. 

§  2676.  Effect  of  intentional  falsity.  If  a  representation, 
by  a  person  insured  by  a  contract  of  marine  insurance,  is 
intentionally  false  in  any  respect,  whether  material  or  im- 
material, the  insurer  may  rescind  the  entire  contract.  En. 
March  21,  1872. 

Representations  generally:    See  ante,  sees.  2571  et  seq. 

§  2677.  Representation  of  expectation.  The  eventual 
falsity  of  a  representation  as  to  expectation  does  not,  in 
the  absence  of  fraud,  avoid  a  contract  of  insurance.  En, 
March  21,  1872. 

Expectation  of  a  third  person,  material:     Sec.  2670. 


ARTICLE    V. 

IMPLIED     WARRANTIES. 

§  2681.  "Warranty  of  seaworthiness. 

1   2682.  Seaworthiness,  what. 

I  2683.  At  what  time  seaworthiness  must  exist. 

§  2684.  What  things  are  required  to  constitute  seawor'hiness. 

§  2685.  Different    degrees    of    seaworthiness    at   differeni    stages    of 

the  voyage. 

§  2686.  Unseaworthiness  during  the  voyage. 

§  2687.  Seaworthiness  for  purposes  of  insurance  on  cargo. 

I  2688.  Neutral  papers. 

§2681.  Warranty  of  seaworthiness.  In  every  marine  in- 
surance upon  a  ship  or  freight,  or  freightage,  or  upon  any- 
thing which  is  the  subject  of  marine  insurance,  a  warranty 
is  implied  that  the  ship  is  seaworthy.  En.  March  21,  1872. 
Am'd.  1873-4,  257. 

Seaworthiness  defined:    See  next  section. 

§  2682.  Seaworthiness,  what.  A  ship  is  seaworthy, 
when  reasonably  fit  to  perform  the  services,  and  to  en- 
counter the  ordinary  perils  of  the  voyage,  contemplated  by 
the  parties  to  the  policy.    En.  March  21,  1872. 

Seaworthiness,  warranty  of:    Sees.  2683-2685,  post. 


§§2GS3-2GS7  MARINE     INSURANCE.  528 

§  2683.  At  what  time  seaworthiness  must  exist.  An 
implied  warranty  of  seaworthiness  is  complied  with  if  the 
ship  be  seaworthy  at  the  time  of  the  commencement  of  the 
risk,  except  in  the  following  cases: 

1.  When  the  insurance  is  made  for  a  specified  length  of 
time,  the  implied  warranty  is  not  complied  with  unless  the 
ship  be  seaworthy  at  the  commencement  of  every  voyage 
she  may  undertake  during  that  time;  and, 

2.  When  the  insurance  is  upon  the  cargo,  which,  by  the 
terms  of  the  policy,  or  the  description  of  the  voyage,  or  the 
established  custom  of  the  trade,  is  to  be  transshipped  at  an 
intermediate  port,  the  implied  warranty  is  not  complied 
with,  unless  each  vessel  upon  which  the  cargo  is  shipped 
or  transshipped  be  seaworthy  at  the  commencement  of  its 
particular  voyage.     En.  March  21,  1872.     Am'd.  1873-4,  257. 

§  2684.  What  things  are  required  to  constitute  seaworthi- 
ness. A  warranty  of  seaworthiness  extends  not  only  to 
the  condition  of  the  structure  of  the  ship  itself,  but  re- 
quires that  it  be  properly  laden,  and  provided  with  a  com- 
petent master,  a  sufficient  number  of  competent  officers  and 
seamen,  and  the  requisite  appurtenances  and  equipments, 
such  as  ballast,  cables,  and  anchors,  cordage  and  sails, 
food,  water,  fuel,  and  lights,  and  other  necessary  or  proper 
stores  and  implements  for  the  voyage.    En.  March  21,  1872. 

§2685.  Different  degrees  cf  seaworthiness  at  different 
stages  of  the  voyage.  Where  different  portions  of  the  voy- 
age contemplated  by  a  policy  differ  in  respect  to  the  things 
requisite  to  make  the  ship  seaworthy  therefor,  a  warranty 
of  seaworthiness  is  complied  with  if,  at  the  commencement 
of  each  portion,  the  ship  is  seaworthy  with  reference  to 
that  portion.    En.  March  21,  1872. 

§2686.  Unseaworthiness  during  the  voyage.  When  a 
ship  becomes  unseaworthy  during  the  voyage  to  which  an 
insurance  relates,  an  unreasonable  delay  in  repairing  the 
defect  exonerates  the  insurer  from  liability  from  any  loss 
arising  therefrom.    En.  March  21,  1872. 

§2687.  Seaworthiness  for  purposes  of  Insurance  on 
cargo.  A  ship  which  is  seaworthy  for  the  purpose  of  an 
insurance  upon  the  ship  may  nevertlieless,  by  reason  of 


529  MARINE     INSURANCE.  §§  26SS-2G95 

being  unfitted  to  receive  the  cargo,  be  iinseaworthy  for  the 
purpose  of  insurance  upon  the  cargo.     En.  March  21,  1872. 

§  2688.  Neutral  papers.  Where  the  nationality  or  neu- 
trality of  a  ship  or  cargo  is  expressly  warranted,  it  is  im- 
plied that  the  ship  will  carry  the  requisite  documents  to 
show  such  nationality  or  neutrality,  and  that  it  will  not 
carry  any  documents  which  cast  reasonable  suspicion 
thereon.    En.  March  21,  1872. 

ARTICLE    VI. 

THE    VOYAGE    AND    DEVIATION. 

§   2692.  Voyage  insured,  how  determined. 

§   2693.  Course  of  sailing,  how  determined. 

§   2694.  Deviation,  what. 

§  2695.  When  proper. 

§  2696.  When  improper. 

§  2697.  Deviation  exonerates  the  insurer, 

§  2692.  Voyage  insured,  how  determined.  When  the 
voyage  contemplated  by  a  policy  is  described  by  the  places 
of  beginning  and  ending,  the  voyage  insured  is  one  which 
conforms  to  the  course  of  sailing  fixed  by  mercantile  usage 
between  those  places.     En.  March  21,  1872. 

§  2693.  Course  of  sailing,  how  determined.  If  the  course 
of  sailing  is  not  fixed  by  mercantile  usage,  the  voyage  in- 
sured by  a  policy  is  the  way  between  the  places  specified 
which,  to  a  master  of  ordinary  skill  and  discretion,  would 
seem  the  most  natural,  direct,  and  advantageous.  En. 
March  21,  1872. 

§2694.  Deviation,  what.  Deviation  is  a  departure  from 
the  course  of  the  voyage  insured,  mentioned  in  the  last 
two  sections,  or  an  unreasonable  delay  in  pursuing  the 
voyage,  or  the  commencement  of  an  entirely  different  voy- 
age.   En.  March  21,  1872. 

§2695.     When  proper.    A  deviation  is  proper: 

1.  When  caused  by  circumstances  over  which  neither  the 
master  nor  the  owner  of  the  ship  has  any  control; 

2.  When  necessary  to  comply  with  a  warranty,  or  to 
avoid  a  peril,  whether  insured  against  or  not; 

3.  When  made  in  good  faith,  and  upon  reasonable  grounds 
of  belief  in  its  necessity  to  avoid  a  peril;  or, 

Civ.   Code— 23 


§§2696-2704  MARINE    INSURANCE.  530 

4.  When  made  in  good  faith,  for  the  purpose  of  saving 
human  life,  or  relieving  another  vessel  in  distress.  En. 
March  21,  1872. 

§  2696.  When  improper.  Every  deviation  not  specified 
in  the  last  section  is  improper.    En.  March  21,  1872. 

§  2697.  Deviation  exonerates  the  insurer.  An  insurer  is 
not  liable  for  any  loss  happening  to  a  thing  insured  subse- 
quently to  an  improper  deviation.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,   297. 

ARTICLE    VII. 

LOSS. 

§  2701.  Total  and  partial  loss. 

§   2702.'  Partial   loss.  , 

§   2703.  Actual  and  constructive  total  loss. 

§   2704.  Actual  total  loss,  what. 

§   2705.  Constructive  total   loss. 

§  2706.  Presumed  actual  loss. 

§  2707.  Insurance  on  cargo,  etc.,  when  voyage  Is  broken  up. 

§   2708.  Cost  of  reshipment,  etc. 

§   2709.  When  insured  is  entitled  to  payment. 

§  2710.  Abandonment  of  goods  on  insurance  of  profits.     (Repealed.) 

§  27H.  Average   loss. 

§  2712.  Insurance  against  total  loss. 

§  2701.  Total  and  partial  loss.  A  loss  may  be  either 
total  or  partial.     En.  March  21,  1872. 

Total  loss  either  actual  or  constructive:  See  post,  sec. 
2703. 

Actual  total  loss  defined:    See    post,  sec.  2704. 

Constructive  total  loss  defined:    See   post,  sec.  2705. 

§  2702.     Partial   loss.     Every  loss  which  is  not  total  is 
partial.     En.  March  21,  1872. 
Liability  on  partial  loss:    Sec.  2737. 
One  third  new  for  old:    Sec.  2746. 

§  2703.     Actual  and  constructive  total  loss.     A  total  loss 
may  be  either  actual  or  constructive.    En.  March  21,  1872. 
Actual  total  loss  defined:    Sec.  2704. 
Actual  loss,  when  presumed:    Sec.  2706. 
Constructive  loss  defined:    Sec.  2705. 

§  2704.  Actual  total  loss,  what.  An  actual  total  loss  Is 
caused  by: 


531  MARINE     INSURANCE.  §§  2705-2710 

1.  A  total  destruction  of  the  thing  insured; 

2.  The  loss  of  the  thing  by  sinking,  or  by  being  broken 
up; 

3.  Any  damage  to  the  thing  which  renders  it  valueless 
to  the  owner  for  the  purposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner 
of  the  possession,  at  the  port  of  destination,  of  the  thing 
insured.     En.  March  21,  1872. 

§  2705.  Constructive  total  loss.  A  constructive  total 
loss  is  one  which  gives  to  a  person  insured  a  right  to 
abandon,  under  section  2717.    En.  March  21,  1872. 

Abandonment  for  constructive  total  loss:  Sees.  2716  et 
seq. 

§  2706.  Presumed  actual  loss.  An  actual  loss  may  be 
presumed  from  the  continued  absence  of  a  ship  without 
being  heard  of;  and  the  length  of  time  which  is  sufficient 
to  raise  this  presumption  depends  on  the  circumstances  of 
the  case.    En.  March  21,  1872. 

§  2707.     Insurance  on  cargo,  etc.,  when  voyage  is  broken 

up.  When  a  ship  is  prevented,  at  an  intermediate  port, 
from  completing  the  voyage,  by  the  perils  insured  against, 
the  master  must  make  every  exertion  to  procure,  in  the 
same  or  a  contiguous  port,  another  ship,  for  the  purpose  of 
conveying  the  cargo  to  its  destination;  and  the  liability  of 
a  marine  insurer  thereon  continues  after  they  are  thus 
reshipped.    En.  March  21,  1872.    Am'd.  1873-4,  258. 

Constructive  total  loss  of  cargo:    See  sees.  2716  et  seq. 

§2708.  Cost  of  reshipment,  etc.  In  addition  to  the  lia- 
bility mentioned  in  the  last  section,  a  marine  insurer  is 
bound  for  damages,  expenses  of  discharging,  storage,  re- 
shipment,  extra  freightage,  and  all  other  expenses  incurred 
in  saving  cargo  reshipped  pursuant  to  the  last  section,  up 
to  the  amount  insured.    En.  March  21,  1872. 

§  2709.  When  insured  is  entitled  to  payment.  Upon  an 
actual  total  loss,  a  person  insured  is  entitled  to  payment 
without  notice  of  abandonment.     En.  March  21,  1872. 

§  2710.  Abandonment  of  goods  on  insurance  of  profits. 
(Repealed).     En.  March  21,  1872.     Rep.  1873-4,  258. 


SS  2711-2717  MARINE    INSURANCE.  532 

§  2711.  Average  loss.  Where  it  has  been  agreed  that  an 
Insurance  upon  a  particular  thing  or  class  of  things  shall 
he  free  fi'om  particular  average,  a  marine  insurer  is  not 
liable  for  any  particular  average  loss  not  depriving  the 
insured  of  the  possession,  at  the  port  of  destination,  of  the 
whole  of  such  thing,  or  class  of  things,  even  though  it 
become  entirely  worthless;  but  he  is  liable  for  his  propor- 
tion of  all  general  average  loss  assessed  upon  the  thing 
insured.     En.  March  21,  1872.     Am'd.  1873-4,  258. 

Cal.Rep.Cit.   92,   387. 

§2712.  Insurance  against  total  loss.  An  insurance  con- 
fined in  terms  to  an  actual  total  loss  does  not  cover  a 
constructive  total  loss,  but  covers  any  loss  which  neces- 
sarily results  in  depriving  the  insured  of  the  possession, 
at  the  port  of  destination,  of  the  entire  thing  insured.  En. 
March  21,  1872.     Am'd.  1873-4,  259. 

ARTICLE    VIII. 

ABANDONMENT. 

§  2716.  Abandonment,  -what. 

§   2717.  When  insured  may  abandon. 

§   2718.  Must  be  unqualified. 

§   2719.  When  may  be  made. 

§  2720.  Abandonment  may  be  defeated. 

§   2721.  How  made. 

§   2722.  Requisites  of  notice. 

§  2723.  No  other  cause  can  be  relied  on. 

§   2724.  Effect. 

§  2725.  Waiver  of  formal  abandonment. 

§  2726.  Agents  of  the  insured  become  agents  of  the  Insurer. 

§   2727.  Acceptance  not  necessary. 

§   2728.  Acceptance  conclusive. 

§   2729.  Accepted  abandonment,   irrevocable. 

§  2730.  Freightage,   how   affected  by  abandonment  of   ship. 

§   2731.  Refusal  to  accept. 

§   2732.  Omission  to  abandon. 

§2716.  Abandonment,  what.  Abandonment  is  the  act 
by  which,  after  a  constructive  total  loss,  a  person  insured 
by  contract  of  marine  insurance  declares  to  the  insurer 
that  he  relinquishes  to  him  his  interest  in  the  thing  insured. 
En.  March  21,  1872. 

Abandonment,  requisites  of:     Post,  sees.  2718-2723. 

Constructive  total  loss  defined:    Ante,  sec.  2705. 

§2717.  When  insured  may  abandon.  A  person  insured 
by  a  contract  of  marine  insurance  may  abandon  the  thing 


633  MARINE    INSURANCE.  2718-2721 

insured,  or  any  particular  portion  thereof  separately  valued 
by  the  policy,  or  otherwise  separately  insured,  and  recover 
for  a  total  loss  thereof,  when  the  cause  of  the  loss  is  a  peril 
insured  against: 

1.  If  more  than  half  thereof  in  value  is  actually  lost,  or 
would  have  to  be  expended  to  recover  it  from  the  peril; 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value 
more  than  one  half; 

3.  If  the  thing  insured,  being  a  ship,  the  contemplated 
voyage  cannot  be  lawfully  performed  without  incurring  an 
expense  to  the  insured  of  more  than  half  the  value  of  the 
thing  abandoned,  or  without  incurring  a  risk  which  a 
prudent  man  would  not  take  under  the  circumstances;  or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the 
voyage  cannot  be  performed  nor  another  ship  procured  by 
the  master,  within  a  reasonable  time  and  with  reasonable 
diligence,  to  forward  the  cargo,  without  incurring  the  like 
expense  or  risk.  But  freightage  cannot  in  any  case  be 
abandoned,  unless  the  ship  is  also  abandoned.  En.  March 
21,  1872. 

Freightage,  how  affected  by  abandonment:  Post,  sec. 
2730. 

§2718.  Must  be  unqualified.  An  abandonment  must  be 
neither  partial  nor  conditional.     En.  March  21,  1872. 

§  2719.  When  may  be  made.  An  abandonment  must  be 
made  within  a  reasonable  time  after  the  information  of  the 
loss,  and  after  the  commencement  of  the  voyage,  and  before 
the  party  abandoning  has  information  of  its  completion. 
En.  March  21,  1872. 

Omitting  to  abandon,  insured  may  still  recover  for  his 
actual  loss:    Post,  sec.  2732. 

§2720.  Abandonment  may  be  defeated.  Where  the  in- 
formation upon  which  an  abandonment  has  been  made 
proves  incorrect,  or  the  thing  insured  was  so  far  restored 
when  the  abandonment  was  made  that  there  was  then  in 
fact  no  total  loss,  the  abandonment  becomes  ineffectual. 
En.  March  21,  1872. 

§2721.  How  made.  Abandonment  is  made  by  giving 
notice  thereof  to  the  insurer,  which  may  be  done  orally, 
or  in  writing.    En.  March  21,  1872. 


§§  2722-2729  MARINE    INSURANCE.  534 

§  2722.  Requisites  of  notice.  A  notice  of  abandonment 
must  be  explicit,  aud  must  specify  the  particular  cause  of 
the  abandonment,  but  need  state  only  enough  to  show  that 
there  is  probable  cause  therefor,  and  need  not  he  accom- 
panied with  proof  of  interest  or  of  loss.    En.  March  21,  1872. 

See,  post,  sec.  2723. 

§2723.  No  other  cause  can  be  relied  on.  An  abandon- 
ment can  be  sustained  only  upon  the  cause  specified  in  the 
notice  thereof.     En.  March  21,  1872. 

§  2724.  Effect.  An  abandonment  is  equivalent  to  a 
transfer,  by  the  insured,  of  his  interest,  to  the  insurer,  with 
all  the  chances  of  recovery  and  indemnity.  En.  March  21, 
1872. 

Subrogation  of  insurer:    See  sec.  2745. 

§  2725.  Waiver  of  formal  abandonment.  If  a  marine 
insurer  pays  for  a  loss  as  if  it  were  an  actual  total  loss,  he 
is  entitled  to  whatever  may  remain  of  the  thing  insured, 
or  its  proceeds  or  salvage,  as  if  there  had  been  a  formal 
abandonment.    En.  March  21,  1872. 

§  2726.  Agents  of  tine  insured  become  agents  of  tiie  in- 
surer.  Upon  an  abandonment,  acts  done  in  good  faith  by 
those  who  were  agents  of  the  insured  in  respect  to  the 
thing  insured,  subsequent  to  the  loss,  are  at  the  risk  of  the 
insurer,  and  for  his  benefit.     En.  March  21,  1872. 

§  2727.  Acceptance  not  necessary.  An  acceptance  of  an 
abandonment  is  not  necessary  to  the  rights  of  the  insured, 
and  is  not  to  be  presumed  from  the  mere  silence  of  the 
insurer  upon  his  receiving  notice  of  abandonment.  En. 
March  21,  1872. 

Compare  with  sec.  2731,  infra. 

§  2728.     Acceptance   conclusive.     The    acceptance   of   an 

abandonment,  whether  express  or  implied,  is  conclusive 
upon  the  parties,  and  admits  the  loss  and  the  sufficiency 
of  the  abandonment.    En.  March  21,  1872. 

§2729.  Accepted  abandonment,  irrevocable.  An  aban- 
donment once  made  and  accepted  is  irrevocable,  unless 
the  ground  upon  which  it  was  made  proves  to  be  unfounded. 
En.  March  21,  1872. 


635  MARINE     INSURANCE.  §§2730-2736 

§  2730.  Freightage,  how  affected  by  abandonment  of 
ship.  On  an  accepted  abandonment  of  a  ship,  ireightage 
earned  previous  to  the  loss  belongs  to  the  insurer  thereof; 
but  freightage  subsequently  earned  belongs  to  the  insurer 
of  the  ship.     En.  March  21,  1872. 

Abandonment  of  freightage:    Ante,  sec.  2717,  subd.  4. 

§  2731.  Refusal  to  accept.  If  an  insurer  refuses  to 
accept  a  valid  abandonment,  he  is  liable  as  upon  an  actual 
total  loss,  deducting  from  the  amount  any  proceeds  of  the 
thing  insured  which  may  have  come  to  the  hands  of  the 
insured.    En.  March  21,  1872. 

Acceptance  not  presumed  from  silence:    Ante,  sec.  2727. 

§2732.  Omission  to  abandon.  If  a  person  insured  omits 
to  abandon,  he  may  nevertheless  recover  his  actual  loss. 
En.  March  21,  1872. 

ARTICLE    IX. 

MEASURE    OF    INDEMNITY. 

S  2736.  ValuatioB,  when  conclusive. 

§  2737.  Partial  loss. 

§  2738.  Profits. 

§  2739.  Valuation  apportioned. 

§  2740.  Valuation  applied  to  profits. 

§  2741.  Estimating  loss  under  an  open  policy. 

§  2742.  Arrival  of  thing  damaged. 

§   2743.  Labor  and  expenses. 

§  2744.  General  average. 

§  2745.  Contribution. 

§  2746.  One  third  new  for  old. 

§  2736.  Valuation,  when  conclusive.  A  valuation  In  a 
policy  of  marine  insurance  is  conclusive  between  the 
parties  thereto  in  the  adjustment  of  either  a  partial  or 
total  loss,  if  the  insured  has  some  interest  at  risk,  and  there 
is  no  fraud  on  his  part;  except  that  when  a  thing  has  been 
hypothecated  by  bottomrj'  or  respondentia,  before  its  in- 
surance, and  without  the  knowledge  of  the  person  actually 
procuring  the  insurance,  he  may  show  the  real  value.  But 
a  valuation  fraudulent  in  fact  entitles  the  insurer  to  rescind 
the  contract.    En.  March  21,  1872. 

Valued  policies:    See   ante,  sec.  2596. 

Valued  policy  on  freightage  or  cargo:  See  sec.  2739,  infra. 

Valuation  of  profits:    See  sec.  2740. 

Valued  policy  of  fire  insurance:    See    post,  sec.  2756. 


§§  2737-2741  MARINE    IXSUUANCE.  536 

§  2737.  Partial  Iocs.  A  marine  insurer  is  liable  upon  a 
partial  loss,  only  for  such  proportion  of  the  amount  insured 
by  him  as  the  loss  bears  to  the  value  of  the  whole  interest 
of  the  insured  in  the  property  insured.    En.  March  21,  1872. 

Compare  with  section  2756,  stating  the  measure  of  in- 
demnity in  case  of  fire  insurance. 

§  2738.  Profits.  Where  profits  are  separately  insured  in 
a  contract  of  marine  insurance,  the  insured  is  entitled  to 
recover  in  case  of  loss,  a  proportion  of  such  profits  equiva- 
lent to  the  proportion  which  the  value  of  the  property  lost 
bears  to  the  value  of  the  whole.     En.  March  21,  1872. 

See   infra,  sec.  2740, 

§  2739.  Valuation  apportioned.  In  case  of  a  valued 
policy  of  marine  insurance  on  freightage  or  cargo,  if  a  part 
only  of  the  subject  is  exposed  to  risk,  the  valuation  applies 
only  in  proportion  to  such  part.    En.  March  21,  1872. 

§2740.  Valuation  applied  to  profits.  When  profits  are 
valued  and  insured  by  a  contract  of  marine  ^insurance,  a 
loss  of  them  is  conclusively  presumed  from  a  loss  of  the 
property  out  of  which  they  were  expected  to  arise,  and  the 
valuation  fixes  their  amount.     En.  March  21,  1872. 

Harmonizes  with  sec.   2738,  ante. 

§  2741.  Estimating  loss  under  an  open  policy.  In  esti- 
mating a  loss  under  an  open  policy  of  marine  insurance, 
the  following  rules  are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the 
risk,  including  all  articles  or  charges  which  add  to  its 
permanent  value,  or  which  are  necessary  to  prepare  it  for 
the  voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured, 
when  laden  on  board,  or  where  that  cost  cannot  be  ascer- 
tained, its  market  value  at  the  time  and  place  of  lading, 
adding  the  charges  incurred  in  purchasing  and  placing  it 
on  board,  but  without  reference  to  any  losses  incurred  in 
raising  money  for  its  purchase,  or  to  any  drawback  on  its 
exportation,  or  to  the  fluctuations  of  the  market  at  the  port 
of  destination,  or  to  expenses  incurred  on  the  way  or  on 
arrival; 


537  MARINE    INSURANCE.  §§  2742-2746 

3.  The  value  of  freightage  is  the  gross  freightage,  ex- 
clusive of  primage,  without  reference  to  the  cost  of  earning 
it;  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be  added  to 
the  value  thus  estimated.     En.  March  21,  1872. 

Partial  loss  of  ship:    Post,  sec.  2746. 

§2742.  Arrival  of  thing  damaged.  If  cargo  insured 
against  partial  loss  arrives  at  the  port  of  destination  in 
a  damaged  condition,  the  loss  of  the  insured  is  deemed  to 
be  the  same  proportion  of  the  value  which  the  market 
price  at  that  port,  of  the  thing  so  damaged,  bears  to  the 
market  price  it  would  have  brought  if  sound.  En.  March 
21,  1872. 

§  2743.  Labor  and  expenses.  A  marine  insurer  is  liable 
for  all  the  expense  attendant  upon  a  loss  which  forces  the 
ship  into  port  to  be  repaired;  and  where  it  is  agreed  that 
the  insured  may  labor  for  the  recovery  of  the  property, 
the  insurer  is  liable  for  the  expense  incurred  thereby,  such 
expense,  in  either  case,  being  in  addition  to  a  total  loss,  if 
that  afterwards  occurs.     En.  March  21,  1872. 

§  2744.  General  average.  A  marine  insurer  is  liable  for 
a  loss  falling  upon  the  insured,  through  a  contribution  in 
respect  to  the  thing  insured,  required  to  be  made  by  him 
towards  a  general  average  loss  called  for  by  a  peril  insyred 
against.    En.  March  21,  1872. 

General  average  generally:    Ante,  sees.  2152  et  seq. 

§2745.  Contribution.  Where  a  person  insured  by  a  con- 
tract of  marine  insurance  has  a  demand  against  others  for 
contribution,  he  nlay  claim  the  whole  loss  from  the  insurer, 
subrogating  him  to  his  own  right  to  contribution.  But  no 
such  claim  can  be  made  upon  the  insurer  after  the  separa- 
tion of  the  interests  liable  to  contribution,  nor  when  the 
insured,  having  the  right  and  opportunity  to  enforce  con- 
tribution from  others,  has  neglected  or  waived  the  exercise 
of  that  right.     En.  March  21,  1872.     Am'd.  1873-4,  259. 

Subrogation  of  insurer:    Ante,  sec.  2724. 

§  2746.  One  third  new  for  old.  In  the  case  of  a  partial 
loss  of  a  ship  or  its  equipments,  the  old  materials  are  to 


j§  2752-2756  FIRE    INSURANCE.  538 

be  applied  towards  payment  for  the  new,  and  whether  the 
ship  is  new  or  old,  a  marine  insurer  is  liable  for  only  two 
thirds  of  the  remaining  cost  of  the  repairs,  except  that  he 
must  pay  for  anchors  and  cannon  in  full,  and  for  sheathing 
metal  at  a  depreciation  of  only  two  and  one  half  per  cent 
for  each  month  that  it  has  been  fastened  to  the  ship.  En. 
March  21,  1872. 

Sale  of  wrecked  or  damaged  vessels:  See  Pol.  Code, 
sec.  2507. 

CHAPTER    III. 

FIRE    INSURANCE. 

§  2752.  False  representations.      (Repealed.) 

§   2753.  Alteration  increasing  risk. 

§  2754.  Alteration   not   increasing   risk. 

§  2755.  Acts  of  the  insured. 

§  2756.  Measure  of  indemnity. 

§  2757.  Value  of  interest,  how  may  be  fixed.     Total  or  partial  loss. 

§2752.  False  representations.  (Repealed.)  En.  March 
21,  1872.     Rep.  1S73-4,  259. 

§  2753.  Alteration  increasing  risk.  An  alteration  in  the 
use  or  condition  of  a  thing  insured  from  that  to  which  it 
is  limited  by  the  policy,  made  without  the  consent  of  the 
insurer,  by  means  within  the  control  of  the  insured,  and 
increasing  the  risk,  entitles  an  insurer  to  rescind  a  con- 
tract of  fire  insurance.     En.  March  21,  1872. 

Cal.Rep.Cit.   122,   599. 

§  2754.  Alteration  not  increasing  risk.  An  alteration  in 
the  use  or  condition  of  a  thing  insured  from  that  to  which 
it  is  limited  by  the  policy,  which  does  not  increase  the 
risk,  does  not  affect  a  contract  of  fire  insuuance.  En.  March 
21,  1872. 

Cal.Rep.Cit.   122,  597  ;   122,  599  ;    122,  600. 

§  2755.  Acts  of  the  insured.  A  contract  of  fire  insurance 
is  not  affected  by  any  act  of  the  insured  subsequent  to  the 
execution  of  the  policy,  which  does  not  violate  its  pro- 
visions, even  though  it  increases  the  risk  and  is  the  cause 
of  a  loss.     En.  March  21,  1872. 

§2756.  IVIeasure  of  indemnity.  If  there  is  no  valuation 
in  the  policy,  the  measure  of  indemnity  in  an  insurance 


g39  FIRE    INSURANCE.  5  2757 

against  fire  is  the  expense,  at  the  time  that  the  loss  is 
payable,  of  replacing  the  thing  lost  or  injured  in  the  con- 
dition in  which  it  was  at  the  time  of  the  injury;  but  the 
effect  of  a  valuation  in  a  policy  of  fire  insurance  is  the 
same  as  in  a  policy  of  marine  insurance.  En.  March  21, 
1872. 
Valued  policy  in  marine  insurance:    See   ante,  sec.  2736. 

§  2757.  Value  of  interest,  how  may  be  fixed.  Total  or 
partial  loss.  Whenever  the  insured  desires  to  have  a 
valuation  named  in  his  policy,  insuring  any  building  or 
structure  against  fire,  he  may  require  such  building  or 
structure  to  be  examined  by  the  insurer  and  the  value  of 
the  insured's  interest  therein  shall  be  thereupon  fixed  by 
the  parties.  The  cost  of  such  examination  shall  be  paid 
for  by  the  insured.  A  clause  shall  be  inserted  in  such 
policy  stating  substantially  that  the  value  of  the  insured's 
interest  in  such  building  or  structure  has  been  thus  fixed. 
In  the  absence  of  any  change  increasing  the  risk  without 
the  consent  of  the  insurer  or  of  fraud  on  the  part  of  the 
insured,  then  in  case  of  a  total  loss  under  such  policy,  the 
whole  amount  so  insured  upon  the  insured's  interest  in  such 
building  or  structure,  as  stated  in  the  policy  upon  which 
the  insurers  have  received  a  premium,  shall  be  paid,  and  in 
case  of  a  partial  loss  the  full  amount  of  the  partial  loss 
shall  be  so  paid,  and  in  case  there  are  two  or  more  policies 
covering  the  insured's  interest  therein,  each  policy  shall 
contribute  pro  rata  to  the  payment  of  such  whole  or  partial 
loss.  But  in  no  case  shall  the  insurer  be  required  to  pay 
more  than  the  amount  thus  stated  in  such  policy.  This 
section  shall  not  prevent  the  parties  from  stipulating  in 
such  policies  concerning  the  repairing,  rebuilding  or  re- 
placing buildings  or  structures  wholly  or  partially  damaged 
or  destroyed.     En.  Stats.  1900-01,  572, 


J5  2762-2765       LIFE    AND    HEALTH    INSURANCE.  540 

CHAPTER    rV. 

LIFE    AND    HEALTH    INSURANCE. 

5  2762.  Insurance  upon  life,  when  payable. 

i  2763.  Insurable  interest. 

§  2764.  Assignee,  etc.,  of  life  policy  need  have  no  Interest. 

§  2765.  Notice  of  transfer. 

§  2766.  Measure  of  indemnity. 

§  2762.  Insurance  upon  life,  when  payable.  An  insur 
ance  upon  life  may  be  made  payable  on  the  death  of  thf 
person,  or  on  his  surviving  a  specified  period,  or  periodically 
so  long  as  he  shall  live,  or  otherwise  contingently  on  the 
continuance  or  determination  of  life.     En.  March  21,  1872- 

Mutual  life,  health,  and  accident  insurance  corporations: 
See  ante,  sees.  437  et  seq.;  post,  Appendix,  title  Insurance. 

Fraternal  societies  not  insurance  companies:  See  ante, 
sec.  451. 

§  2763.  Insurable  Interest.  Every  person  has  an  insur- 
able interest  in  the  life  and  health: 

1.  Of  himself; 

2.  Of  any  person  on  whom  he  depends  wholly  or  in  part 
for  education  or  support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the 
payment  of  monej'',  or  respecting  property  or  services,  of 
which  death  or  illness  might  delay  or  prevent  the  perform- 
ance; and, 

4.  Of  any  person  upon  whose  life  any  estate  or  interest 
vested  in  him  depends.    En.  March  21,  1872. 

Cal.Rep.Cit.   90,   248. 

Insurable  interest  generally:    Ante,  sees.  2546  et  seq. 

§2764.  Assignee,  etc.,  of  life  policy  need  have  no  in- 
terest. A  policy  of  insurance  upon  life  or  health  may  pass 
by  transfer,  will,  or  succession  to  any  person,  whether  he 
has  an  insurable  interest  or  not,  and  such  person  may 
recover  upon  it  whatever  the  insured  might  have  recovered 
En.  March  21,  1872. 

Cal.Rep.Cit.   90,   251. 

Compare  with  section  2553,  ante. 

§2765.  Notice  of  transfer.  Notice  to  an  insurer  of  a 
transfer  or  bequest  thereof  is  not  necessary  to  preserve 


541  INDEMNITY.  §§  2766-2775 

the  validity  of  a  policy  of  insurance  upon  life  or  health, 
unless  thereby  expressly  required.     En.  March  21,  1872. 

§  2766.  Measure  of  indemnity.  Unless  the  Interest  of 
a  person  insured  is  susceptible  of  exact  pecuniary  measure- 
ment, the  measure  of  indemnity  under  a  policy  of  insurance 
upon  life  or  health  is  the  sum  fixed  in  the  policy.  En. 
March  21,  1872. 

Act  relating  to  life,  health,  accident  and  annuity  or  en- 
dowment insurance:     See  post,  Appendix,  title  Insurance. 

• 

TITLE    XII. 

INDEMNITY. 

I  2772.  Indemnity,  what. 

§  2773.  Indemnity  for  a  future  wrongful  act  void. 

§   2774.  Indemnity  for  a  past  wrongful  act  valid. 

§  2775.  Indemnity  extends  to  acts  of  agents. 

§  2776.  Indemnity  to  several. 

§  2777.  Person  indemnifying  liable  jointly  or  severally  with  person 

indemnified. 

S  2778.  Rules  for  interpreting  agreement  of  indemnity. 

§  2779.  When  person  indemnifying  is  a  surety. 

§   2780.  Bail,  what. 

§  2781.  How  regulated. 

§  2772.  Indemnity,  what.  Indemnity  is  a  contract  by 
which  one  engages  to  save  another  from  a  legal  conse- 
quence of  the  conduct  of  one  of  the  parties,  or  of  some 
other  person.     En.  March  21,  1872. 

Cal.Rep.Cit.   58,   439  ;   70,  557. 

§2773.  Indemnity  for  a  future  wrongful  act  void.  An 
agreement  to  indemnify  a  person  against  an  act  thereafter 
to  be  done  is  void,  if  the  act  be  known  by  such  person,  at 
the  time  of  doing  it,  to  be  unlawful.  En.  March  21,  1872. 
Am'd.  1873-4,  259. 

§  2774.     Indemnity   for   a    past   wrongful    act   valid.      An 

agreement  to  indemnify  a  person  against  an  act  already 
done  is  valid,  even  though  the  act  was  known  to  be  wrong- 
ful, unless  it  was  a  felony.    En.  March  21,  1872. 

§2775.  Indemnity  extends  to  acts  of  agents.  An  agree- 
ment to  indemnify  against  the  acts  of  a  certain  person 
applies  not  only  to  his  acts  and  their  consequences,  but 
also  to  those  of  his  agents.    En.  March  21,  1872. 

Cal.Rep.Cit.  58,  439. 


5§  277C-2778  INDEMNITY.  542 

§2776.  Indemnity  to  several.  An  agreement  to  In- 
demnify several  persons  applies  to  each,  unless  a  contrary 
intention  appears.    En.  March  21,  1872. 

?  2777.  Person  indemnifying  liable  jointly  or  severally 
with  person  indemnified.  One  who  indemnifies  another 
against  an  act  to  be  done  by  the  latter,  is  liable  jointly 
with  the  person  indemnified,  and  separately  to  every  person 
injured  by  such  act.    En.  March  21,  1872. 

§2778.  Rules  for  interpreting  agreement  of  indemnity. 
In  the  interpretation  of  a  contract  of  indemnity,  the  fallow- 
ing rules  are  to  be  applied,  unless  a  contrary  intention 
appears: 

1.  Upon  an  indemnity  against  liability,  expressly,  or  in 
other  equivalent  terms,  the  person  indemnified  is  entitled 
to  recover  upon  becoming  liable; 

2.  Upon  an  indemnity  against  claims,  or  demands,  or 
damages,  or  costs,  expressly,  or  in  other  equivalent  terms, 
the  person  indemnified  is  not  entitled  to  recover  without 
payment  thereof; 

3.  An  indemnity  against  claims,  or  demands,  or  liability, 
expressly,  or  in  other  equivalent  terms,  embraces  the  costs 
of  defense  against  such  claims,  demands,  or  liability  in- 
curred in  good  faith,  and  in  the  exercise  of  a  reasonable 
discretion; 

4.  The  person  indemnifying  is  bound,  on  request  of  the 
person  indemnified,  to  defend  actions  or  proceedings 
brought  against  the  latter  in  respect  to  the  matters  em- 
braced by  the  indemnity,  but  the  person  indemnified  has 
the  right  to  conduct  such  defenses,  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  person  indemnifying  neglects  to 
defend  the  person  indemnified,  a  recovery  against  the 
latter,  suffered  by  him  in  good  faith,  is  conclusive  in  his 
favor  against  the  former; 

6.  If  the  person  indemnifying,  whether  he  is  a  principal 
or  a  surety  in  the  agreement,  has  not  reasonable  notice  of 
the  action  or  proceeding  against  the  person  indemnified, 
or  is  not  allowed  to  control  its  defense,  judgment  against 
the  latter  is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  tnat  a  judgment  against  the  person  in- 
demnified shall  be  conclusive  upon  the  person  indemnifying, 


543  GUARANTY     IN     GENERAL.  §§2779-2781 

is  inapplicable  if  he  had  a  good  defense  upon  the  merits, 
which  by  want  of  ordinary  care  he  failed  to  establish  in 
the  action.     En.  March  21,  1872. 

Cal.Rep.Cit.  57,  50;  121,519.   Subd.  1  —  81,273.  Subd.  3— 
81,  274.   Subd.  4  —  68,  432.   Subd.  5  —  81,  273. 

§  2779.  When  person  indemnifying  is  a  surety.  Where 
one,  at  the  request  of  another,  engages  to  answer  in 
damages,  whether  liquidated  or  unliquidated,  for  any 
violation  of  duty  on  the  part  of  the  latter,  he  is  entitled  to 
be  reimbursed  in  the  same  manner  as  a  surety,  for  whatever 
he  may  pay.     En.  March  21,  1872. 

§2780.  Bail,  what.  Upon  those  contracts  of  indemnity 
which  are  taken  in  legal  proceedings  as  security  for  the 
performance  of  an  obligation  imposed  or  declared  by 
the  tribunals,  and  known  as  undertakings  or  recognizances, 
the  sureties  are  called  bail.    En.  March  21,  1872. 

§  2781.  How  regulated.  The  obligations  of  bail  are 
governed  by  the  statutes  specially  applicable  thereto.  En. 
March  21,  1872. 


TITLE    XIII. 

GUARANTY. 
Chapter  I.     Guaranty  in  General,  §§  2787-2825. 
II.     Suretyship,  §§  2831-2866. 

CHAPTER    I. 

GUARANTY     IN     GENERAL. 

Article  I.  Definition   of   Guaranty,    §§  2787-2788. 

II.  Creation   of  Guaranty,   §S  2792-2795. 

III.  Interpretation    of   Guaranty,    §§  2799-2802. 

IV.  Liability  of  Guarantors,   §§  2806-2810. 
V.  Continuing  Guaranty,   §§  2814-2815. 

VI.     Exoneration  of  Guarantors,  §§  2819-2825. 

ARTICLE    I. 

DEFINITION    OF    GUARANTY. 

§  2787.     Guaranty,  what. 

5  2788.     Knowledge     of    principal     not    necessary    to     creation     of 
guaranty. 


§§  27S7-2794  GUARANTY    IN    GENERAL.  644 

§  2787.  Guaranty,  what.  A  guaranty  is  a  promise  to 
answer  for  the  debt,  default,  or  miscarriage  of  another 
person.    En.  March  21,  1872. 

Cal.Rep.Cit.   62,  487;   77,  477;    94,  103;   113,  434;   119,  70. 

§  2788.  Knowledge  of  principal  not  necessary  to  creation 
of  guaranty.  A  person  may  become  guarantor  even  with- 
out the  linowledge  or  consent  of  the  principal.  En.  March 
21,  1872. 


ARTICLE    II. 
CREATION    OF    GUARANTY. 

§  2792.      Necessity  of  a  consideration. 

§  2793.     Guaranty  to  be  in  writing,  etc. 

§  2794.     Engagement    to    answer    for    obligation    of    another,    when 

deemed   original. 
§  2795.      Acceptance  of   guaranty. 

§  2792.  Necessity  of  a  consideration.  Where  a  guaranty 
is  entered  into  at  the  same  time  with  the  original  obligation, 
or  with  the  acceptance  of  the  latter  by  the  guarantee,  and 
forms  with  that  obligation  a  part  of  the  consideration  to 
him,  no  other  consideration  need  exist.  In  all  other  cases 
there  must  be  a  consideration  distinct  from  that  of  the 
original  obligation.    En.  March  21,  1872. 

Cal.Rep.Cit.  109,  221. 

§  2793.  Guaranty  to  be  in  writing,  etc.  Except  as  pre- 
scribed by  the  next  section,  a  guaranty  must  be  in  writing, 
and  signed  by  the  guarantor;  but  the  writing  need  not, 
express  a  consideration.     En.  March  21,  1872. 

Cal.Rep.Cit.  Ill,  284 ;  113,  434. 

§  2794.  Engagement  to  answer  for  obligation  of  another, 
when  deemed  original.  A  promise  to  answer  for  the  obli- 
gation of  another,  in  any  of  the  following  cases,  is  deemed 
an  original  obligation  of  the  promisor,  and  need  not  be 
in  writing: 

1.  Where  the  promise  is  made  by  one  who  has  received 
property  of  another  upon  an  undertaking  to  apply  it  pur- 
suant to  such  promise;  or  by  one  who  has  received  a 
discharge  from  an  obligation  in  whole  or  in  part,  in  con- 
sideration of  such  promise; 

2.  Where  the  creditor  parts  with  value,  or  enters  into  an 


545  GUARANTY     IN     GENERAL.  §§2795,2799 

obligation,  in  consideration  of  the  obligation,  in  respect 
to  which  Uie  promise  is  made,  in  terms  or  under  circum- 
stances such  "as  to  render  the  party  making  the  promise 
the  principal  debtor,  and  the  person  in  whose  behalf  it  is 
made,  his  surety; 

3.  Where  the  promise,  being  for  an  antecedent  obligation 
of  another,  is  made  upon  the  consideration  that  the  party 
receiving  it  cancels  the  antecedent  obligation,  accepting 
the  new  promise  as  a  substitute  therefor;  or  upon  the 
consideration  that  the  party  receiving  it  releases  the  prop- 
erty of  another  from  a  levy,  or  his  person  from  imprison- 
ment under  an  execution  on  a  judgment  obtained  upon 
the  antecedent  obligation;  or  upon  a  consideration  bene- 
ficial to  the  promisor,  whether  moving  from  either  party 
to  the  antecedent  obligation,  or  ffom  another  person; 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell 
merchandise  and  guaranty  the  sale; 

5.  Where  the  holder  of  an  instrument  for  the  payment 

of  money,  upon  which  a  third  person  is  or  may  become 

liable  to  him,  transfers  it  in  payment  of  a  precedent  debt 

of  his  own,  or  for  a  new  consideration,  and  in  connection 

with  such  transfer  enters  into  a  promise  respecting  sucli 

instrument.     En.  March  21,  1872. 

Cal.Rep.Cit.      59,444;      67,294;      67,598;      77,       8;      77,     81; 
81,  288;   113,  434;   117,  591.       Subd.   1—130,  415.     Subd.   2— 
128,  253;      70,  557.       Subd.   3—117,  593;   123,  383. 

§  2795.  Acceptance  of  guaranty.  A  mere  offer  to  guar- 
anty is  not  binding,  until  notice  of  its  acceptance  is  com- 
municated by  the  guarantee  to  the  guarantor;  but  an 
absolute  guaranty  is  binding  upon  the  guarantor  without 
notice  of  acceptance.     En.  March  21,  1872. 

Cal.Rep.Cit.  125,  481;   128,  253. 

Absolute  guaranty:    See   post,  sec.  2806. 

ARTICLE    III. 

INTERPRETATION    OF    GUARANTT. 

§   2799.  Guaranty  of  incomplete   contract. 

§  2800.  Guaranty  that  an   obligation    is   good  or   collectible. 

§   2801.  Recovery   upon    such   guaranty. 

§  2802.  Guarantor's  liability  upon  such  guaranty. 

§  2799.  Guaranty  of  incomplete  contract.  In  a  guaranty 
of  a  contract,  the  terms  of  which  are  not  then  settled,  it 


S§  2800 -2807  GUARANTY     IN     GENERAL.  548 

is  implied  that  its  terms  shall  be  such  as  will  not  expose 
the  guarantor  to  greater  risks  than  he  would  incur  under 
those  terms  which  are  most  common  in  sirmlar  contracts 
at  the  place  where  the  principal  contract  is  to  be  perlormed. 
En.  March  21,  1872. 
Cal.Rep.Cit.   SO,   341. 

§2800.  Guaranty  that  an  obligation  is  good  or  collect- 
ible. A  guaranty  to  the  effect  that  an  obligation  is  good,  or 
is  collectible,  imports  that  the  debtor  is  solvent,  and  that 
the  demand  is  collectible  by  the  usual  legal  proceedings,  if 
taken  with  reasonable  diligence.     En.  March  21,  1872. 

§  2801.  Recovery  upon  such  guaranty.  A  guaranty,  such 
as  is  mentioned  in  the  last  section,  is  not  discharged  by  an 
omission  to  take  proceedings  upon  the  principal  debt,  or 
upon  any  collateral  security  for  ics  payment,  if  no  part  of 
the  debt  could  have  been  collected  thereby.  En.  March 
21,  1872. 

§2802.  Guarantor's  liability  upon  such  guaranty.  In  the 
cases  mentioned  in  section  2800,  the  removal  of  the  prin- 
cipal from  the  state,  leaving  no  property  therein  from  which 
the  obligation  might  be  satisfied,  is  equivalent  to  the  in- 
solvency of  the  principal  in  its  effect  upon  the  rights  and 
obligations  of  the  guarantor.    En,  March  21,  1872. 


ARTICLE    IV. 
LIABILITY    OF    GUARANTORS. 

§  2806.  Guaranty,    how   construed. 

§  2807.  Liability    upon    guaranty   of  payment   or   performance. 

§  2808.  Liability  upon   guaranty  of  a   conditional  obligation. 

§  2809.  Obligation  of  guarantor  cannot  exceed  that  of  the  principaL 

§  2810.  Guarantor  not  liable  on   an   illegal   contract. 

§  2806.  Guaranty,  how  construed.  A  guaranty  is  to  be 
deemed  unconditional  unless  its  terms  import  some  con- 
dition nrprpr^PTit  to  the  liability  of  the  guarantor.  En. 
March  21,  1872. 

Cal.Rep.Cit.   78,  448;   128,  470. 

§2807.  Liability  upon  guaranty  of  payment  or  perform- 
ance.   A  guarantor  of  payment  or  performance  is  liable 


547  GUARANTY    IN    GENERAL.  §§  280S-2815 

to  the  guarantee  immediately  upon  the  default  of  the  prin- 
cipal, and  without  demand  or  notice.    En.  March  21,  1872. 

Cal.Rep.Cit.     62,  487;     77,  477;     77,  478;     78,  448;     86,  373; 
94,  103;   105,  441;  128,  470;   128,  668. 

§2808.  Liability  upon  guaranty  of  a  conditional  obliga- 
tion. Where  one  guarantees  a  conditional  obligation,  his 
liability  is  commensurate  with  that  of  the  principal,  and  he 
is  not  entitled  to  notice  of  the  default  of  the  principal, 
unless  he  is  unable,  by  the  exercise  of  reasonable  diligence, 
to  acquire  information  of  such  default,  and  the  creditor  has 
actual  notice  thereof.    En.  March  21,  1872. 

Cal.Rep.Cit.   121,   606. 

§  2809.  Obligation  of  guarantor  cannot  exceed  that  of 
the  principal.  The  obligation  of  a  guarantor  must  be 
neither  larger  in  amount  nor  in  other  respects  more  burden- 
some than  that  of  the  principal;  and  if  in  its  terms  it 
exceeds  it,  it  is  reducible  in  proportion  to  the  principal 
obligation.    En.  March  21,  1872. 

Cal.Rep.Cit.   61,  399. 

§2810.  Guarantor  not  liable  on  an  illegal  contract.  A 
guarantor  is  not  liable  if  the  contract  of  the  principal  Is 
unlawful;  but  he  is  liable  notwithstanding  any  mere  per- 
sonal disability  of  the  principal,  though  the  disability  be 
such  as  to  make  the  contract  void  against  the  principal. 
En.  March  21,  1872. 

ARTICLE   V. 

CONTINUING    GUARANTY. 

§  2814.     Continuing   guaranty,   what. 
§  2815.     Revocation. 

§2814.  Continuing  guaranty,  what.  A  guaranty  relating 
to  a  future  liability  of  the  principal,  under  successive 
transactions,  which  either  continue  his  liability  or  from 
time  to  time  renew  it  after  it  has  been  satisfied,  is  called 
a  continuing  guaranty.    En.  March  21,  1872. 

§2815.  Revocation.  A  continuing  guaranty  may  be  re- 
voked at  any  time  by  the  guarantor,  in  respect  to  future 
transactions,  unless  there  is  a  continuing  consideration  as 
to  such  transactions  which  he  does  not  renounce.  En. 
March  21,  1872. 


15  2819-2822  GUARANTY    IN    GENERAL.  648 

ARTICLE    VI. 

EXONERATION  OP  GUARANTORS. 

!  2819.  What  dealings  with  debtor  exonerate  guarantor. 

S  2820.  Void   promises. 

§  2821.  Rescission  of   alteration. 

§  2822.  Part  performance. 

§  2823.  Delay  of  creditor  does  not  discharge  guarantor. 

5  2824.  Guarantor  indemnified  by  the  debtor,  not  exonerated. 

{  2825.  Discbarge   of  principal    by   act   of   law   does  not   discbarge 
guarantor. 

§  2819.  What  dealings  with  debtor  exonerate  guarantor. 
A  guarantor  is  exonerated,  except  so  far  as  he  may  be 
indemnified  by  the  principal,  if  by  any  act  of  the  creditor, 
without  the  consent  of  the  guarantor,  the  original  obliga- 
tion of  the  principal  is  altered  in  any  respect,  or  the 
remedies  or  rights  of  the  creditor  against  the  principal, 
in  respect  thereto,  in  any  way  impaired  or  suspended.  En. 
March  21,  1872. 

Cal.Rep.Cit.     70,     84;     77,  477;     91,  210;   110,  665;   117,  497; 
120,  501;   122,     66;   122,     67;   122,  668;   130,  254. 

Liability  of  guarantor:    See    ante,  sees.  2806  et  seq. 

Rights  of  creditor  where  security  given:  See  post,  sec. 
2854. 

Forbearance  will  not  discharge:    Post,  sec.  2823. 

Neglect  or  refusal  to  sue  after  request  will  discharge: 
Post,  sec.  2845. 

Discharge  of  surety  by  alteration  of  principal's  contract: 
Post,  sec.  2821. 

§  2820.  Void  promises.  A  promise  by  a  creditor,  which 
for  any  cause  is  void,  or  voidable  by  him  at  his  option,  does 
not  alter  the  obligation  or  suspend  or  impair  the  remedy, 
within  the  meaning  of  the  last  section.    En.  March  21,  1872. 

§2821.  Rescission  of  alteration.  The  rescission  of  an 
agreement  altering  the  original  obligation  of  a  debtor,  or 
impairing  the  remedy  of  a  creditor,  does  not  restore  the 
liability  of  a  guarantor  who  has  been  exonerated  by  such 
agreement.    En.  March  21,  1872. 

§  2822.  Part  performance.  The  acceptance,  by  a  creditor, 
of  anything  in  partial  satisfaction  of  an  obligation,  reduces 
the  obligation  of  a  guarantor  thereof,  in  the  same  measure 


549  SURETYSHIP.  §§  2823-2831 

as  that  of  the  principal,  but  does  not  otherwise  affect  it. 
En.  March  21,  1872. 

Part  performance  of  the  obligation,  expressly  accepted 
by  the  creditor  in  writing,  would  extinguish  the  obligation 
of  the  debtor,  and  therefore  that  of  the  surety:  Ante,  sees. 
1523,  1524. 

§2823.     Delay  of  .creditor  does  not  discharge  guarantor. 

Mere  delay  on  the  part  of  a  creditor  to  proceed  r.gainst  the 
principal,  or  to  enforce  any  other  remedy,  does  not  ex- 
onerate a  guarantor.     En.  March  21,  1872, 

Cal.Rep.Cit.  77,  60;   77,  478;   94,  103;   130,  254. 

Notice  to  creditor  to  sue:    See   post,  sec.  2845. 

§2824.  Guarantor  indemnified  by  the  debtor,  not  ex- 
onerated. A  guarantor,  who  has  been  indemnified  by 
the  principal,  is  liable  to  the  creditor  to  the  extent  of  the 
indemnity,  notwithstanding  that  the  creditor,  without  the 
assent  of  the  guarantor,  may  have  modiried  the  contract  or 
released  the  principal.    En.  March  21,  1872. 

Cal.Rep.Cit.  117,  297  ;   117,  497. 

See  ante,  sec.  2819  and  sec.  2794,  subd.  1. 

§  2825.  Discharge  oi  principal  by  act  of  law  does  not 
discharge  guarantor.  A  guarantor  is  not  exonerated  by  the 
discharge  of  his  principal  by  operation  of  law,  without  the 
intervention  or  omission  of  the  creditor.  En.  March  21, 
1872. 

CHAPTER    II. 

SURETYSHIP. 

Article  I.  Who  are  Sureties,  §§  2831-2832. 

II.  Liability   of   Sureties,    §§  2836-2840. 

III.  Rights  of  Sureties,  §§   2844-2850. 

IV.  Rights  of  Creditors,   §  2854. 

V.     Letter  of  Credit,   §§  2858-2866. 

ARTICLE    I. 

WHO    ARE     SURETIES. 

(2831.     Surety,  what. 
2832.     Apparent  principal  may  show  that  he  Is  surety. 

§2831.  Surety,  what,  A  surety  is  one  who  at  the  request 
of  another  and  for  the  purpose  of  securing  to  him  a  benefit. 


§§  2832-2838  SURETYSHIP.  550 

becomes  responsible  for  the  performance  by  the  latter  of 
some  act  in  favor  of  a  third  person,  or  hypothecates  prop- 
erty as  security  therefor.    En.  March  21,  1872. 

Cal.Rep.Cit.     78,  448;   101,  420;   105,  441;   109,  221;   112,     34; 
119,     70;   120,  501;   127,  526. 

Distinction  between  sureties  and  guarantors:    Ante,  sees. 
2807,  2808. 

§  2832.     Apparent  principal  may  siic'w  that  he  is  surety. 

One  who  appears  to  be  a  principal,  whether  by  the  terms 

of  a  written  instrument  or  otherwise,  may  show  that  he 

is  in  fact  a  surety,  except  as  against  persons  who  have 

acted  on  the  faith  of  his  apparent  character  of  principal. 

En.  March  21,  1872. 

Cal.Rep.Cit.      55,342;      60,392;      62,503;      76,130;      77,477; 
109,  409;   114,  625;   114,  626;   114,  627;   136,  371;   137,  692. 


ARTICLE    II. 

LIABILITY    OF    SURETIES. 

§  2836.  Limit  of  surety's  obligation. 

§  2837.  Rules  of   interpretation. 

§  2838.  Judgment  against  surety  does  not  alter  the  relation. 

§  2839.  Surety  exonerated  by  performance  or  offer  of  performance. 

§  2840.  Surety  discharged  by  certain  acts  of  the  creditor. 

§  2836.     Limit  of  surety's  obligation.     A  surety  cannot  be 

held  beyond  the  express  terms  of  his  contract,  and  if  such 

contract  prescribes  a  penalty  for  its  breach,  he  cannot  in 

any  case  be  liable  for  more  than  the  penalty.     En.  March 

21,  1872. 

Cal.Rep.Cit.     71,  300;     81,  532;      81,  537;   108,  565;   116,     36; 
119,  257. 

§  2837.  Rules  of  interpretation.  In  interpreting  the 
terms  of  a  contract  of  suretyship,  the  same  rules  are  to  be 
observed  as  in  the  case  of  other  contracts.  En.  March  21, 
1872. 

Cal.Rep.Cit.      77,448;      78,448;      80,618;      81,  532  ;   100,  104 ; 
119,  257. 

§  2838.  Judgment  against  surety  does  not  alter  the  re- 
lation. Notwithstanding  the  recovery  of  judgment  by  a 
creditor  against  a  surety,  the  latter  still  occupies  the  rela- 
tion of  surety.    En.  March  21,  1872. 


551  SURET-i^SHIP.  §§  2839-2S45 

§  2839.  Surety  exonerated  by  performance  or  offer  of 
performance.  Performance  of  the  principal  obligation,  or 
an  offer  of  such  performance,  duly  made  as  provided  in 
this  code,  exonerates  a  surety.  En.  March  21,  1872.  Am'd. 
1873-4,  260. 

Cal.Rep.Cit.   98,  399. 

Offer  of  performance:    Ante,  sees.  1485-1505. 

§  2840.     Surety  discharged  by  certain  acts  of  the  creditor. 

A  surety  is  exonerated — 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  which  he  is  prejudiced  by  any  act  of 
the  creditor  which  would  naturally  prove  injurious  to  the 
remedies  of  the  surety  or  inconsistent  with  his  rights, 
or  which  lessens  his  security;  or, 

3.  To  the  extent  to  which  he  is  prejudiced  by  an  omission 

of  the  creditor  to  do  anything,  when  required  by  the  surety 

which  it  is  his  duty  to  do.    En.  March  21,  1872. 

Cal.Rep.Cit.      77,448;      77,477;      78.448;      96,641;   112,     35; 
114,  627;   120,  501;    130,  254.       Subd.   1  —  91,  210. 

Subd.  1:    Ante,  sec.  2819. 
Subd.  3:    Ante,  sec.  2845. 

ARTICLE    III. 

RIGHTS    OF    SURETIES. 

§  2844.     Surety  has  rights  of  guarantor. 

§  2845.     Surety    may    require    the    creditor    to    proceed    against    th« 

principal. 
§  2846.     Surety  may  compel  principal  to  perform  obligations,  when 

due. 
§  2847.     A  principal  boimd  to  reimburse  his  surety. 
I  2848.     The  surety  acquires  the  right  of  the  creditor. 
§  2849.      Surety  entitled  to  benefit  of  securities  held  by  creditor. 
§  2850.     The  property  of  principal  to  be  taken  first. 

§  2844.     Surety   has   rights   of  guarantor,     a'  surety  has 

all  the  rights  of  a  guarantor,  whether  he  become  personally 

responsible  or  not.     En.  March  21,  1872. 

Cal.Rep.Cit.     77,  477  ;     78,  448  ;   105,  441 ;   109,  221 ;   110,  665  ; 
120,  501. 

See    ante,  sees.  2808-2810* 

§2845.  Surety  may  require  the  creditor  to  proceed 
against  the  principal.  A  surety  may  require  his  creditor 
to  proceed  against  the  principal,  or  to  pursue  any  other 
remedy   in   his   power   which   the    surety   cannot   himself 


55  2846-2849  SURETYSHIP.  552 

pursue,  and  which  would  lighten  his  burden;  and  if  in  such 
case  the  creditor  neglects  to  do  so,  the  surety  is  exonerated 
to  the  extent  to  which  he  is  thereby  prejudiced.  En.  March 
21,  1872. 

Cal.Rep.Cit.  53,  689. 

Mere  delay  by  the  creditor  to  pursue  the  principal  does 
not  discharge  the  surety:  Ante,  sec.  2823;  see,  also,  ante, 
sec.  2840,  subd.  1. 

§  2846.  Surety  may  compel  principal  to  perform'  obliga- 
tions, when  due.  A  surety  may  compel  his  principal  to 
perform  the  obligation  when  due.    En.  March  21,  1872. 

Cal.Rep.Cit.   53,   689. 

The  action  under  this  section  is  provided  for  in  sec.  1050, 
Code.  Civ.  Proc. 

Section  2845,  ante,  may  be  considered  as  containing 
another  substitute  for  the  equitable  action. 

§2847.     A  principal  bound  to  reimburse  his  surety.     If  a 

surety  satisfies  the  principal  obligation  or  any  part  thereof, 

whether  with  or  without  legal  proceedings,  the  principal 

is  bound  to  reimburse  what  he  has   disbursed,   including 

necessary  costs  and  expenses;  but  the  surety  has  no  claim 

for  reimbursement  against  other  persons,  though  they  may 

have  been  benefited  by  his  act,  except  as  prescribed  by  the 

next  section.     En.  March  21,  1872. 

Cal.Rep.Cit.      53,  689;      67,  243;   117,  202;   121,  423;   122,  673; 
127,  527;   133,  578. 

§  2848.  The  surety  acquires  the  right  of  the  creditor.  A 
surety,  upon  satisfying  the  obligation  of  the  principal,  is 
entitled  to  enforce  every  remedy  which  the  creditor  then 
has  against  the  principal  to  the  extent  of  reimbursing  what 
he  has  expended,  and  also  to  require  all  his  co-sureties  to 
contribute  thereto,  without  regard  to  the  order  of  time  in 
which  they  became  such.     En.  March  21,  1872. 

Cal.Rep.Cit.   53,  689;   67,  243;   122,  673;   130,  254;   133,  578. 

§2849.  Surety  entitled  to  benefit  of  securities  held  by 
creditor.  A  sui-ety  is  entitled  to  the  benefit  of  every 
security  for  the  performance  of  the  principal  obligation 
held  by  the  creditor,  or  by  a  co-surety  at  the  time  of  enter- 
ing Into  the  contract  of  suretyship,  or  acquired   by  him 


553  SURETYSHIP.  §§  2850-2859 

afterwards,  whether  the  surety  was  aware  of  the  security 

or  not.    En.  March  21,  1872. 

Cal.Rep.Cit.     96,  641;   114,  626;   114,  627;   119,     70;   127,  371; 
133,  578. 

§2850.  The  property  of  principal  to  be  taken  first. 
Whenever  property  of  a  surety  is  hypothecated  with  prop- 
erty of  the  principal,  the  surety  is  entitled  to  have  the 
property  of  the  principal  first  applied  to  the  discharge  of 
the  obligation.     En.  March  21,  1872. 

Cal.Rep.Cit.   119,  70;   120,  501. 


ARTICLE    IV. 

RIGHTS     OP     CREDITORS. 

§  2854.     Creditor  entitled  to  benefit  of  securities  held  by  surety. 

§2854.  Creditor  entitled  to  benefit  of  securities  held 
by  surety.  A  creditor  is  entitled  to  the  benefit  of  every- 
thing which  a  surety  has  received  from  the  debtor  by  way 
of  security  for  the  performance  of  the  obligation,  and  may, 
upon  the  maturity  of  the  obligation,  compel  the  application 
of  such  security  to  its  satisfaction.    En.  March  21,  1872. 

Cal.Rep.Cit.  109,  136. 

ARTICLE    V. 

LETTER    OF    CREDIT. 

§  2858.  Letter  of  credit,  what. 

§  2859.  How  r.Ldresbed. 

§  2860.  Liability  of  ttie  writer. 

§  2861.  Letters  of  credit,  either  general  or  special. 

§  2862.  Nature  of  general   letter  of  credit. 

§  2863.  Extent  of  general   letter  of  credit. 

I  2864.  A  letter  of  credit  may  be  a  continuing  guaranty. 

§  2865.  When   notice  to   the  writer  necessary. 

§  2866.  The  credit  given  must  agree  with  the  terms  of  the  letter. 

§2858.  Letter  of  credit,  what.  A  letter  of  credit  is  a 
written  instrument,  addressed  by  one  person  to  another, 
requesting  the  latter  to  give  credit  to  the  person  in  whose 
favor  it  is  drawn.     En.  March  21,  1872. 

Cal.Rep.Cit.   125,   481. 

§2859.  How  addressed.  A  letter  of  credit' may  be  ad- 
dressed to  several  persons  in  succession.  En.  March  21, 
1872. 

Civ.   Code— 24 


§§  2860-2866  SURETYSHIP.  554 

§2860.  Liability  of  the  writer.  The  writer  of  a  letter 
of  credit  is,  upon  the  default  of  the  debtor,  liable  to  those 
who  gave  credit  in  compliance  with  its  terms.  En.  March 
21,  1872. 

Cal.Rep.Cit.   70,   384. 

§2861.  Letters  of  credit,  either  general  or  special.  A 
letter  of  credit  is  either  general  or  special.  When  the 
request  for  credit  in  a  letter  is  addressed  to  specified  per- 
sons by  name  or  description,  the  letter  is  special.  All 
other  letters  of  credit  are  general.      Ep.  March  21,  1872. 

Credit  to  correspond  with  terms  of  the  letter:  See  post, 
sec.  2866. 

§  2862.  Nature  of  general  letter  of  credit.  A  general 
letter  of  credit  gives  any  person  to  whom  it  may  be  shown 
authority  to  comply  with  its  request,  and  by  his  so  doing 
it  becomes,  as  to  him,  of  the  same  effect  as  if  addressed  to 
him  by  name.     En.  March  21,  1872. 

§2863.  Extent  of  general  letter  of  credit.  Several  per- 
sons may  successively  give  credit  upon  a  general  letter. 
En.  March  21,  1872. 

§2864.     A  letter  cf  credit  may  be  a  continuing  guaranty. 

If  the  parties  to  a  letter  of  credit  appear,  by  its  terms, 
to  contemplate  a  course  of  future  dealing  between  the 
parties,  it  is  not  exhausted  by  giving  a  credit,  even  to  the 
amount  limited  by  the  letter,  which  is  subsequently  re- 
duced or  satisfied  by  payments  made  by  the  debtor,  but  is 
to  be  deemed  a  continuing  guaranty.    En.  March  21,  1872. 

§  2865.  When  notice  to  the  writer  necessary.  The  writer 
of  a  letter  of  credit  is  liable  for  credit  given  upon  it  with- 
out notice  to  him,  unless  its  terms  express  or  imply  the 
necessity  of  giving  notice.     En.  March  21,  1872. 

Cal.Rep.Cit.  125,  481. 

§2866.  The  credit  given  must  agree  with  the  terms  of 
the  letter.  If  a  letter  of  credit  prescribes  the  persons  by 
whom,  or  the  mode  in  which,  the  credit  is  to  be  given, 
or  the  term  of  credit,  or  limits  the  amount  thereof,  the 
writer  is  pot  bound  except  for  transactions  which,  in 
these  respects,  conform  strictly  to  the  terms  of  the  let- 
ter.    En.  March  21,  1872. 

Cal.Rep.Cit.   61,   430. 


555 


LIENS    IN    GENERAL. 


2872-2874 


TITLE    XIV. 

LIEN. 

Chapter  I.  Liens  in  General,  §§  2S72-2913. 

n.  Mortgage,   §§   2920-2972, 

m.  Pledge,   §§  2986-3011. 

IV.  Bottomry,  §§  3017-3029. 

V.  Respondentia,    §§    3036-3040. 

VL  Other  Liens,  §§  3046-3060. 

VIL  Stoppage  in  Transit,  §§  3076-3080. 

CHAPTER    I. 

LIENS    IN    GENERAL. 

Article  I.  Definition  of  Liens,   §§  2872-2877. 

II.  Creation   of  Liens,   §§  2881-2884. 

III.  Effect  of   Liens,   §§  2888-2892. 

IV.  Prioritv  of  Liens,  §§  2897-2899. 

V.      Redemption   from   Liens,   §§  2903-2905. 
VI.     Extinction  of  Liens,   §§  2909-2913. 


ARTICLE    I. 

DEFINITION    OF    LIENS. 

§  2872.  Lien,  what. 

§   2873.  Liens,   general  or  special. 

§  2874.  General  lien,  what. 

§  2875.  Special  lien,  what. 

§  2876.  Prior  liens. 

§  2877.  Contracts  subject  to  provisions  of  this  chapter. 

§  2872.  .  Lien,  what.  A  lien  is  a  charge  imposed  in  some 
mode  other  than  by  a  transfer  in  trust  upon  specific  prop- 
erty, by  which  it  is  made  security  for  the  performance  of 
an  act.     En.  March  21,  1872.     Am'd.  1877-8,  88. 

Cal.Rep.Cit.  118,  419;   121,  384;   126,  469. 

Compare  Code  Civ.  Proc,  sec.  1180. 

Unclaimed  property,  rights  in  relation  to:  See  Pol.  Code, 
Bees.  3152  et  seq. 

§  2873.  Liens,  general  or  special.  Liens  are  either  gen- 
eral or  special.     En.  March  21,  1872. 

§2874.  General  lien,  what.  A  general  lien  is  one  which 
the  holder  thereof  is  entitled  to  enforce  as  a  security  for 
the  performance  of  all  the  obligations,  or  all  of  a  particular 


85  2875-2882  LIENS    IN    GENERAL.  65S 

class  of  obligations,  which  exist  in  his  favor  against  the 
owner  of  the  property.    En.  March  21,  1872. 

Factors. — Usage  of  trade  usually  gives  factors  a  general 
lien,  which  is  established  in  this  state  by  section  in)b'd, 
post. 

Banker:      Post,   sec.   3054. 

Master  of  ship:     Post,  sec.  3055. 

Mate  and  seamen:     Post,  sec.  3056. 

Lien  for  ^services:     See  post,  sec.  3051. 

§2875.  Special  lien,  what.  A  special  lien  is  one  which 
the  holder  thereof  can  enforce  only  as  security  for  the 
performance  of  a  particular  act  or  obligation,  and  of  such 
obligations  as  may  be  incidental  thereto.  En.  March  21. 
1872. 

Incidental  thereto:     See  next  section. 

§2876.  Prior  liens.  Where  the  holder  of  a  special  lien 
is  compelled  to  satisfy  a  prior  lien  for  his  own  protec- 
tion, he  may  enforce  payment  of  the  amount  so  paid  by 
him.  as  a  part  of  the  claim  for  which  his  own  lien  exists. 
En.  March  21,  1872. 

Cal.Rep.Cit.  121,   656. 

§  2877.  Contracts  subject  to  provisions  of  this  chapter. 
Contracts  of  mortgage,  pledge,  bottomry,  or  respondentia, 
are  subject  to  all  the  provisions  of  this  chapter.  En. 
March  21,  1872. 


ARTICLE    II. 

CREATION    OF     LIENS. 

§  2881.  Lien,  how  created. 

§   2882.  No  lien  for  claim  not  due. 

§   2883.  Lien  on  future  interest. 

5  2884.  Lien  may  be  created  by  contract. 

§  2881.     Lien,  how  created.     A  lien  is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law.     En.  March  21,  1872. 
Cal.Rep.Cit.   80,  116;    92,  79;    118,  419;    126,  469. 

§  2882.     No   lien   for  claim    not   due.     No  lien  arises  by 
mere  operation  of  law  until  the  time  at  which  the  act  to 


557  LIENS    IN    GENERAL.  §§  2883-2890 

be  secured  thereby  ought  to  be  performed.  En.  March  21, 
1S72. 

Cal.Rep.Cit.   73.   20. 

§2883.  Lien  on  future  interest.  An  agreement  may  be 
made  to  create  a  lien  upon  property  not  yet  acquired  by 
the  party  agreeing  to  give  the  lien,  or  not  yet  in  existence. 
In  such  case  the  lien  agreed  for  attaches  from  the  time 
when  the  party  agreeing  to  give  it  acquires  an  interest  in 
the  thing,  to  the  extent  of  such  interest.  En.  March  21, 
1872. 

Cal.Rep.Cit.   118,   419. 

§  2884.  Lien  may  be  created  by  contract.  A  lien  may 
be  created  by  contract,  to  take  immediate  effect,  as  se- 
curity for  the  performance  of  obligations  not  then  in  ex- 
istence.   En.  March  21,  1872. 

Cal.Rep.Cit.  77.  386;  80,  116;   121,  274. 


ARTICLE    III. 

EFFECT    OF    LIENS. 

§  2888.  Lien,  or  contract'  forJien,  transfers  no  title. 

§   2889.  Certain  contracts  voia. 

§   2890.  Creation  of  lien  does  not  imply  pecsonal  obligation. 

§   2891.  Extent  of  lien. 

§  2892.  Holder  of  lien  not  entitled  to  compensation. 

§2888.     Lien,    or    contract    for    lien,    transfers    no    title. 

Notwithstanding  an  agreement  to  the  contrary,  a  lien,  or 

a  contract  for  a  lien,  transfers  no  title  to  the  property 

subject  to  the  lien.     En.  March  21,  1872. 

Cal.Rep.Cit.      73,  306;      99,  518;   101,  452;   105,  297;' 105,  468; 
112,     12;    112,  219;   112,  601;   115,  593;   121,  519;   126,  207; 
.  128,  406;   128,  407;   138,  336. 

Post,  sees.  2927  et  seq. 

§  2889.  Certain  contracts  void.  All  contracts  for  the 
forfeiture  of  property  subject  to  a  lien,  in  satisfaction  of 
the  obligation  secured  thereby,  and  all  contracts  in  re- 
straint of  the  right  of  redemption  from  a  lien,  are  void. 
En.  March  21,  1872. 

Cal.Rep.Cit.      85,  368;   105,     76;   114,  599;   120,  153;   120,  154; 
128,  406;   128,  407. 

§2890.  Creation  of  lien  does  not  imply  personal  obliga- 
tion.    The  creation  of  a  lien  does  not  of  itself  imply  that 


{§2891-2899  LIENS     IN    GENERAL.  558 

any  person  is  bound  to  perform  the  act  for  which  the  lien 
is  a  security.     En.  March  21,  1872. 
Cal.Rep.Cit.  114,    139. 

See  post,  sees.  2909,  2928,  3000. 

§2891.  Extent  of  lien.  The  existence  of  a  lien  upon 
property  does  not  of  itself  entitle  the  person  in  whose 
favor  it  exists  to  a  lien  upon  the  same  property  for  the 
performance  of  any  other  obligation  than  that  which  the 
lien  originally  secured.     En.  March  21,  1872. 

§  2892.  Holder  of  lien  not  entitled  to  compensation. 
One  who  holds  property  by  virtue  of  a  lien  thereon,  is 
not  entitled  to  compensation  from  the  owner  thereof  for 
any  trouble  or  expense  which  he  incurs  respecting  it,  ex- 
cept to  the  same  extent  as  a  borrower,  under  sections  1892 
and  1893.     En.  March  21,  1872. 


ARTICLE    rV. 

PRIORITY  OF  LIENS. 

§   2897.     Priority  of  liens.  * 

§   2898.      Priority  of  moptgage  for  price. 
S  2S99.      Order  of  resort  to  different  funds. 

§2897.  Priority  of  liens.  Other  things  being  equal,  dif- 
ferent liens  upon  the  same  property  have  priority  accord- 
ing to  the  time  of  their  creation,  except  in  cases  of  bot- 
tomry and  respondentia.     En.  March  21,  1872. 

§  2898.  Priority  of  mortgage  for  price.  A  mortgage 
given  for  the  price  of  real  property,  at  the  time  of  its 
conveyance,  has  priority  over  all  other  liens  creafed 
against  the  purchaser,  subject  to  the  operation  of  the  re- 
cording laws.    En.  March  21,  1872. 

Cal.Rep.Cit.   87,  627  ;   120,  6S3. 

§2899.  Order  of  resort  to  different  funds.  Where  one 
has  a  lien  upon  several  things,  and  other  persons  have 
subordinate  liens  upon,  or  interests  in,  some  but  not  all  of 
the  same  things,  the  person  having  the  prior  lien,  if  he  ca.n 
do  so  without  risk  of  loss  to  himself,  or  of  injustice  to 
other  persons,  must  resort  to  the  property  in  the  following 
order  on  the   demand   of  any   party   interested: 


559  LIENS    IN    GENERAL.  §§  2903,  2904 

1.  To  the  things  upon  which  he  has  an  exclusive  lien; 

2.  To  the  things  which  are  subject  to  the  fewest  sub- 
ordinate liens; 

3.  In  like  manner  inversely  to  the  number  of  subordi- 
nate liens  upon  the  same  thing;  and, 

4.  When  several  things  are  within  one  of  the  foregoing 
classes,  and  subject  to  the  same  number  of  liens,  resort 
must  be  had — 

(1)  To  the  things  which  have  not  been  transferred  since 
the  prior  lien  was  created; 

(2)  To  the  things  which  have  been  so  transferred  with- 
out a  valuable  consideration;  and, 

(3)  To  the  things  which  have  been  so  transferred  for 
a  valuable  consideration  in  the  inverse  order  of  the  trans- 
fer.    En.  March  21,  1872. 

Cal.Rep.Cit.   114,  541;   119,  296;   119,  354;   119,  355;   135,  117. 

Marshaling  of  assets:     See  post,  sec.  3433. 

ARTICLE    V. 

REDEMPTION    FROM    LIENS. 

§  2903.     Right  to  redeem. 

§  2904.     Rights  of   inferior   lienor. 

S  2905.     Redemption  from  lien,   how  made. 

§  2903.  Right  to  redeem.  Every  person,  having  an  In- 
terest in  property  subject  to  a  lien,  has  a  right  to  redeem 
it  from  the  lien,  at  any  time  after  the  claim  is  due,  and 
before  his  right  of  redemption  is  foreclosed.  En.  March  21, 
1872. 

Cal.Rep.Cit.     61,429;     79,120;      80,355;-     95,195;     95,196; 
95,  201:      95,  203. 

Redemption  from  execution  sale:  See  Code  Civ.  Proc.„ 
sees.  346,  347,  701  et  seq. 

Pledgor's  right  of  redemption  may  be  foreclosed:  Sec. 
3011,  post. 

§  2904.  Rights  of  inferior  lienor.  One  who  has  a  lien 
inferior  to  another,  upon  the  same  property,  has  a  right: 

1.  To  redeem  the  property  in  the  same  manner  as  its 
owner  might,  from  the  superior  lien;  and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior 
lien,  when  necessary  for  the  protection  of  his  interests. 


§§  2900-2911  LIENS    IN    GENERAL.  5G0 

upon   satisfying   the   claim    secured   thereby.     En.    March 

21,  1872. 

Cal.Rep.Cit.   78,  603;    78,  604. 

§2905.  Redemption  from  lien,  how  made.  Redemption 
from  a  lien  is  made  by  performing  or  oftering  to  perform, 
the  act  for  the  performance  of  which  it  is  a  security,  and 
paying  or  offering  to  pay,  the  damages,  if  any,  to  which  the 
holder  of  the  lien  is  entitled  for  delay.    En.  Mai'ch  21,  1872. 

Cal.Rep.Cit.  101,  548. 

ARTICLE    VI. 

EXTINCTION    OF    LIENS. 

§  2909.  Lien  deemed  accessory  to  the  act  whose  performance  It 
secures. 

§  2910.     Extinction  by  sale  or  conversion. 

§  2911.  Lien  extinguished  by  lapse  of  time  under  statute  o£  limi- 
tations. 

§   2912.     Apportionment  of   lien. 

§  2913.     When  restoration  extinguishes  lien. 

§  2909.  Lien  deemed  accessory  to  the  act  whose  per- 
formance it  secures.  A  lien  is  to  be  deemed  accessory  to 
the  act  for  the  performance  of  which  it  is  a  security, 
whether  any  person  is  bound  for  such  performance  or  not, 
and  is  extinguishable  in  like  manner  with  any  other  ac- 
cessory obligation.     En.  March  21,  1872. 

Cal.Rep.Cit.   104,  12  ;    122,  416. 

Assignment  of  debt:    See  sec.  2936,  post. 

§2910.     Extinction   by  sale  or  conversion.     The  sale  of 

any  property  on  which  there  is  a  lien,  in  satisfaction  of 

the  claim  secured  thereby,  or  in  case  of  personal  property, 

its  wrongful   conversion  by  the  person  holding  the  lien, 

extinguishes  the  lien  thereon.    En.  March  21,  1872. 

Cal.Rep.Cit.  74,  255;  100,  37;  111,  185;  117,  36S ;  122,  283; 
122,  416;    124,  28S. 

§2911.  Lien  extinguished  by  lapse  of  time  under  statute 
of  limitations.  A  lien  is  extinguished  by  the  lapse  of  the 
time  within  which,  under  the  provisions  of  the  Code  of 
Civil  Procedure,  an  action  can  be  brought  upon  the  prin- 
cipal obligation.     En.  March  21,  1872. 

Cal.Rep.Cit.  56,  343;  58,  151;  58,  152;  66,  336;  72,  311; 
115,  176;  116,  259;  120,  222;  120,  223;  122.  416;  122,  418; 
124,  512;   131,  439;    ia2,  423;   132,  428;   137,  385;   137,  386. 

See  Code  Civ,  Proc,  sees.  335-347. 


661 


MORTGAGE. 


§§  2912,  2913 


§2912.  Apportionment  of  lien.  The  partial  performance 
of  an  act  secured  by  a  lien  does  not  extinguish  the  lien 
upon  any  part  of  the  property  subject  thereto,  even  if  it 
is  divisible.     En.  March  21,  1872. 

Cal.Rep.Cit.  122,  416. 

§2913.  Wlien  restoration  extinguishes  lien.  The  vol- 
untary restoration  of  property  to  its  owner  by  the  holder 
of  a  lien  thereon,  dependent  upon  possession,  extinguishes 
the  lien  as  to  such  property,  unless  otherwise  agreed  by 
the  parties,  and  extinguishes  it,  notwithstanding  any  such 
agreement,  as  to  creditors  of  the  owner  and  persons,  sub- 
sequently acquiring  a  title  to  the  property,  or  a  lien 
thereon,  in  good  faith,  and  for  a  good  consideration.  En. 
March  21,  1872.     Am'd.  1S73-4,  260. 

Cal.Rep.Cit.  59.  159;   59,  168;   99,  518;   122,  416. 

CHAPTBH    II. 

MORTGAGE. 

Article  I.      Mortgages   In   General,    §§  2920-2942. 

II.      Mortgages  of  Real  Property,  §§   2947-2952. 
III.     Mortgages  of  Personal  Property,  §§  2955-2972. 


ARTICLE    I. 

MORTGAGES    IN    GENERAL. 

§  2920.  Mortgage,  what. 

§  2921.  Property  adversely  held  may  be  mortgaged. 

§  2922.  To  be  in  writing. 

§   2923.  Lien  of  a  mortgage,  when  special. 

§  2924.  Transfer  of  interest,  when  a  mortgage  and  when  a  pledge. 

§   2925.  Transfer  made  subject  to  defeasance  may  be  proved. 

§  2926.  Mortgage  on  what  a  lien. 

5  2927.  Mortgage  does  not  entitle  mortgagee  to  possession. 

I   2928.  Mortgage  not  a  personal  obligation. 

§  2929.  Waste. 

§  2930.  Subsequently  acquired  title  inures  to  mortgagee. 

§  2931.  Foreclosure. 

§   2932.  Power  of  sale. 

§   2933.  Power  of  attorney  to  execute. 

§   2934.  Recording  assignment  of  mortgage. 

§   2935.  Recording  assignment  of  mortgage  not  notice  to  mortgagor. 

§   2936.  Mortgage  passes  by  assignment  of  debt. 

§  2937.  Time  allowed  for  filing  mortgage  for  record.     (Repealed.) 

§   2938.  Mortgage,   how  discharged. 

§   2939.  Same. 

§   2939%.  Discharge  by  foreign  executors. 

§   2940.  Certificate  and  record  of  discharge. 

§  2941.  Duty  of  mortgagee  on  satisfaction  of  aortgage. 

§  2942.  Provisions    of    this    chapter    do    not    affect    bottomry    or 
respondentia. 


{!  2920-2924  MORTGAGE.  '  662 

§  2920.  Mortgage,  what.  Mortgage  is  a  contract  by 
which  specific  property  is  hypothecated  for  the  perform- 
ance of  an  act,  without  the  necessity  of  a  change  of  pos- 
session.    En.  March  21,  1872. 

Cal.Rep.Cit.  58.  15;  66,  98;  88,441;  98,518;  107,148; 
109,  365;  112,  187;  121,  489;  122,  479;  125,  461;  128,  300; 
128,  491;   135,  279. 

The  code  substitutes,  instead  of  the  actual  possession 
previously  requisite,  the  recording  provisions  of  sees.  2957, 
2959,  2962,  2963,  2965,  and  2966. 

Actual  transfer  of  possession  of  personalty  would  change 
it  into  a  pledge:     See  sec.  2924,  post.' 

§  2921.  Property  adversely  held  may  be  mortgaged.  A 
mortgage  may  be  created  upon  property  held  adversely 
to  the  mortgagor.    En.  March  21,  1872. 

This  provision  is  a  logical  sequence  of  section  2947,  post, 
and  section  1047,  ante. 

§  2922.  To  be  in  writing.  A  mortgage  can  be  created, 
renewed,  or  extended,  only  by  writing,  executed  with  the 
formalities  required  in  the  case  of  a  grant  of  real  prop- 
erty.   En.  March  21,  1872. 

Cal.Rep.Cit.      53,  680;      56,  344;  57,  471;  58,  152;  65,  516; 

68,     53;      74,  350;      84,  205;  85,  288;  112,  366;  117,  415; 

120,  223;   120,  224;   122,  418;  122,  419;  122,  420;  126,  469; 

128,  551;   129,  417;   134,  600;  137,  389. 

Mortgage,  form  of:    Sec.  2948,  post. 

§  2923.  Lien  of  a  mortgage,  when  special.  The  lien  of 
a  mortgage  is  special,  unless  otherwise  expressly  agreed, 
and  is  independent  of  possession.    En.  March  21,  1872, 

Special  lien,  definition:    See  ante,  sec.  2875. 

§  2924.  Transfer  of  interest,  when  a  mortgage  and 
when  a  pledge.  Every  transfer  of  an  interest  in  prop- 
erty, other  than  in  trust,  made  only  as  a  security  for  the 
performance  of  another  act,  is  to  be  deemed  a  mortgage, 
except  when  in  the  case  of  personal  property  it  is  accom- 
panied by  actual  change  of  possession,  in  which  case  it  is 
to  be  deemed  a  pledge.  En.  March  21,  1872.  Am'd.  1873-4, 
260. 

Cal.Rep.Cit.  58,     15;     59,  112;     64,  514;     71,  411;  74,  254; 

80,  352;  91,  461;   100,  254;   105,  469;   105,  470;  106,  680; 

107,  148;  121,  384;   121,  542;   123,  694;   126,  604;  127,  256; 

128,  300;  129,  163;   135,  279. 


663  MORTGAGE.  §§  2925-2923 

Deed  absolute  on  its  face,  when  a  mortgage:  See  post, 
sees.  2925,  2950. 

§  2925.  Transfer  made  subject  to  defeasance  may  be 
proved.  The  fact  that  a  transfer  was  made  subject  to 
defeasance  on  a  condition,  may,  for  the  purpose  of  show- 
ing such  transfer  to  be  a  mortgage,  be  proved  (except  as 
against  a  subsequent  purchaser  or  incumbrancer  for  value 
and  without  notice),  though  the  fact  does  not  appear  by 
the  terms  of  the  instrument.     En.  March  21,  1872. 

Cal.Rep.Cit.  58,  15;  64,514;  71,411;  88,325;  91,461; 
119,     21;   123,  694;   127,  256. 

Deed  absolute  on  its  face  a  mortgage:  See  sees.  2924, 
ante;  2950,  post. 

Recording  defeasance:    See  sec.  2950,  post. 

§2926.  Mortgage  on  what  a  lien.  A  mortgage  is  a  lien 
upon  everything  that  would  pass  by  a  grant  of  the  pi-op- 
erty.     En.  March  21,  1872. 

Cal.Rep.Cit.   SO,' 252;    80,  352;   126,  605. 

Fixtures  generally:    See  ante,  sec.  660. 
Growing  crops:  Post,  sec.  2972. 

§  2927.  Mortgage  does  not  entitle  mortgagee  to  posses- 
sion. A  mortgage  does  not  entitle  the  mortgagee  to  the 
possession  of  the  property,  unless  authorized  by  the  ex- 
press terms  of  the  mortgage;  but  after  the  execution  of 
the  mortgage  the  mortgagor  may  agree  to  such  change  of 
possession  without  a  new  consideration.  En.  March  21, 
1872. 

Cal.Rep.Cit.  72,309;  80,326;  88,440;  96,  32 ;  106,  680 ; 
109,  362;  109,  365;  112,  187;  117,  416;  121,  544;  127,  652; 
128,  491. 

Mortgagee's  possession:    Ante,  sees.  2920,  2923. 

§2928.  Mortgage  not  a  persona!  obligation.  A  mort- 
gage does  not  bind  the  mortgagor  personally  to  perform 
the  act  for  the  performance  of  which  it  is  a  security,  un- 
less there  is  an  express  covenant  therein  to  that  effect. 
En.  March  21,  1872. 

Cal.Rep.Cit.  57,  642;  66,  98;   101,  419;   127,  204;   137,  255. 

§  2929.  Waste.  No  person  whose  interest  is  subject  to 
the  lien  of  a  mortgage  may  do  any  act  which  will   sub- 


S§  2030-2034  MORTGAGE.  564 

stantially  impair  the  mortgagee's  security.     En.  March  21, 
1872. 

Cal.Rep.Cit.   80,   246. 

Damages  are  recoverable  by  the  purchaser  at  the  sale, 
for  injuries  by  tenant:    See  sec.  746,  Code  Civ.  Proc. 

§2930.     Subsequently  acquired  title  enures  to  mortgagee. 

Title  acquired  by  the  mortgagor  subsequent  to  the  execu- 
tion of  the  mortgage  enures  to  the  mortgagee  as  security 
for  the  debt,  in  like  manner  as  if  acquired  before  the  exe- 
cution.    En.  March  21,  1872.     Am'd.  1873-4,  260. 
Cal.Rep.Cit.   52,  335;   52,  336;   67,  279;   98,  518. 

Sec.  1106,  ante. 

§  2931.  Foreclosure.  A  mortgagee  may  foreclose  the 
right  of  redemption  of  the  mortgagor  in  the  manner  pre- 
scribed by  the  Code  of  Civil  Procedure.  En.  March  21, 
1872. 

Foreclosure  of  mortgage. — Place  of  trial:  Code  Civ. 
Proc,  sec.  392.  Receiver  may  be  appointed:  Id.,  sec.  564.  ' 
Proceedings  in  actions  for  foreclosure:  Id.;  sec.  726.  Rem- 
edy exclusive:  Id.,  sec.  744.  Surplus,  hovsr  disposed  of: 
Id.,  sec.  727.  Installment  loans:  Id.,  sec.  728.  Actions 
against  estates:    Id.,  sec.  1500. 

§  2932.  Power  of  sale.  A  power  of  sale  may  be  con- 
ferred by  a  mortgage  upon  the  mortgagee  or  any  other  per- 
son, to  be  exercised  after  a  breach  of  the  obligation  for 
which  the  mortgage  is  a  security.    En.  March  21,  1872. 

Cal.Rep.Cit.   57,  482;   101,  227, 

Power  of  sale  is  a  part  of  the  security  and  passes  by 
assignment  of  the  debt:    Sec.  858,  ante. 

§  2933.  Power  of  attorney  to  execute.  A  power  of  at- 
torney to  execute  a  mortgage  must  be  in  writing,  sub- 
scribed, acknowledged,  or  proved,  certified,  and  recorded 
in  like  manner  as  powers  of  attorney  for  grants  of  real 
property.     En.  March  21,  1872. 

Authorization  generally:    See  sec.  2309,  ante. 

§2934.  Recording  assignment  of  mortgage.  An  assign- 
ment of  a  mortgage  may  be  recorded  in  like  manner  as  a 
mortgage,  and  such  record  operates  as  notice  to  all  per- 


565  MORTGAGE.  §§  2935-2939 

sons    Subsequeutly    deriving   title    to    the   mortgage    from 
the  assignor.     En.  March  21,  1872.     Am'd.  1873-4,  261. 
Cal.Rep.Cit.   109,  49;   120,  241;   120,  242. 

§  2935.  Recording  assignment  of  mortgage  not  notice 
to  mortgagor.  When  the  mortgage  is  executed  as  security 
for  money  due,  or  to  become  due,  on  a  promissory  note, 
bond,  or  other  instrument,  designated  in  the  mortgage, 
the  record  of  the  assignment  of  the  mortgage  is  not,  of 
itself,  notice  to  a  mortgagor,  his  heirs,  or  personal  repre- 
sentatives, so  as  to  invalidate  any  payment  made  by  them, 
or  either  of  them,  to  the  person  holding  such  note,  bond, 
or  other  instrument.  En.  March  21,  1872.  Am'd.  1873  4, 
261. 

Cal.Rep.Cit.   120,  242;   136,  316. 

§  2936.  Mortgage  passes  by  assignment  of  debt.  The 
assignment  of  a  debt  secured  by  mortgage  cames  with  it 
the  security.     En.  March  21,  1872. 

Cal.Rep.Cit.   S8,  327;   93,  117;   109,  48. 

§2937.     Time    allowed    for    filing    mortgage    for    record. 
(Repealed.)     En.  March  21,  1872.     Rep.  1873-4,  261. 
Cal.Rep.Cit.  46,  607;   46,  608;   46,  609;   127,  309. 

§2938.  Mortgage,  how  discharged.  A  recorded  mort- 
gage may  be  discharged  by  an  entry  in  the  margin  of  the 
record  thereof,  signed  by  the  mortgagee,  or  his  personal 
representative  or  assignee,  acknowledging  the  satisfac- 
tion of  the  mortgage  in  the  presence  of  the  recorder,  who 
must  certify  the  acknowledgment  in  form  substantially  as 

follows:     "Signed  and  acknowledged  before  me,  this  

day  of ,  in  the  year .    A  B,  Recorder."    En.  March 

21,  1872. 

Cal.Rep.Cit.   72,  457;   119,  297. 

§  2939.  Same.  A  recorded  mortgage,  if  not  discharged 
as  provided  in  the  preceding  section,  must  be  discharged 
upon  the  record  by  the  officer  having  custody  thereof,  on 
the  presentation  to  him  of  a  certificate  signed  by  the  mort- 
gagee, his  personal  representatives,  or  assigns,  acknowl- 
edged or  proved  and  certified  as  prescribed  by  the  chapter 
on  recording  transfers,  stating  that  the  mortgage  has  been 
paid,  satisfied,  or  discharged.     En.  March  21,  1872. 


J§  29391^-2942  MORTGAGE.  666 

§  2939^/.>'  Discharge  by  foreign  executors.  Foreign  ex- 
ecutors and  administrators  may  satisfy  mortgages  upon 
the  records  of  any  county  in  this  state,  upon  producing 
and  recording  in  the  office  of  the  county  recorder  of  the 
county  in  which  such  mortgage  is  recorded,  a  duly  certi- 
fied and  authenticated  copy  of  their  letters  testamentary 
or  of  administration,  and  v/hich  certificate  shall  also  recite 
that  said  letters  have  not  been  revoked.   En.  Stats.  1895,  29. 

§  2940.  Certificate  and  record  of  discharge.  A  certifi- 
cate of  the  discharge  of  a  mortgage,  and  the  proof  or  ac- 
knowledgment thereof,  must  be  recorded  at  length,  and  a 
reference  made  in  the  record  to  the  book  and  page  where 
the  mortgage  is  recorded,  and  in  the  minute  of  the  dis- 
charge made  upon  the  record  of  the  mortgage  to  the  book 
and  page  where  the  discharge  is  recorded.  En.  March 
21,  1872. 

§2941.  Duty  of  mortgagee  on  satisfaction  of  mortgage. 
When  any  mortgage  has  been  satisfied,  the  mortgagee  or 
his  assignee  must  immediately,  on  demand  of  the  mort- 
gagor, execute,  acknowledge,  and  deliver  to  him  a  certifi- 
cate of  the  discharge  thereof,  so  as  to  entitle  it  to  be  re- 
corded, or  he  must  enter  satisfaction,  or  cause  satisfaction 
of  such  mortgage  to  be  entered  of  record;  and  any  mort- 
gagee, or  assignee  of  such  mortgagee,  who  refuses  to  exe- 
cute, acknowledge,  and  deliver  to  the  mortgagor  the  cer- 
tificate of  discharge,  or  to  enter  satisfaction  or  cause  satis- 
faction of  the  mortgage  to  be  entered,  as  provided  in  this 
chapter,  is  liable  to  the  mortgagor,  or  his  grantee  or  heirs, 
for  all  damages  which  he  or  they  may  sustain  by  reason 
of  such  refusal,  and  shall  also  forfeit  to  him  or  them  the 
sum  of  one  hundred  dollars.  En.  March  21,  1872.  Am'd. 
1873-4,  261;   1880,  11. 

Cal.Rep.Cit.   106,  200;   106,  201, 

§  2942.  Provisions  of  this  chapter  do  not  affect  bottomry 
or  respondentia.  Contracts  of  bottomry  or  respondentia, 
although  in  the  nature  of  mortgages,  are  not  affected  by 
any  of  the  provisions  of  this  chapter.    En.  March  21.  1872. 

Bottomry:     See  sees.  3017  et  seq.,  post. 

Respondentia:     See  sees.  3036  et  seq.,  post. 


567  MORTGAGE.  §§  2947-2950 

ARTICLE    II. 
MORTGAGES    OF    REAL    PROPERTY. 

§  2947.     What  real  property  may  be  mortgaged. 

§   2948.      Form  of  mortgage. 

§  2949.     What  must  be  recorded  as  a  mortgage.      (Repealed.) 

§   2950.     Defeasance,   to   affect   grant   absolute   on    its   face,    must   be 

recorded. 
§  2951.     By  whom  paid  after  property  passes  by  succession  or  will. 

(Repealed.) 
§  2952.     May  be  recorded. 

§  2947.     What    real    property    may    be    mortgaged.      Any 

interest  in  real  property  wtiich  is  capable  of  being  trans- 
ferred may  be  mortgaged.     En.  March  21,  1872. 

Cal.Rep.Cit.   75,  106;   99,  548;   122,  627;   124,  329;   131,  606. 

See  sec.  1045,  ante. 

Property  held  adversely  may  be  mortgaged:  Ante,  sec. 
2921. 

§  2948.  Form  of  mortgage.  A  mortgage  of  real  prop- 
erty may  be  made  in  substantially  the  following  form: 

"This  mortgage,  made  the  day  of  ,  in  the  year 

,  by  A  B,  of  ,  mortgagor,  to  C  D,  of  ,  mort- 
gagee, witnesseth: 

"That  the  mortgagor  mortgages  to  the  mortgagee  [here 
describe  the  property],  as  security  for  the  payment  to  him 

of dollars,  on  [or  before]  the day  of ,  in  the 

year  ,  with  interest  thereon   [or  as  security  for  the 

payment  of  an  obligation,  describing  it,  etc.].  A  B."  En. 
March  21,  1872. 

Cal.Rep.Cit.   67,  275;   124,  329. 

Deed  absolute  in  form  construed  as  a  mortgage:  See 
sees.  2924,  2925,  ante,  and  see  sec.  2950,  post. 

§  2949.     What   must   be    recorded   as   a   mortgage.      (Re- 
pealed.)    En.  March  21,  1872.     Rep.  1873-4,  262. 
Cal.Rep.Cit.   124,   329. 

§2950.  Defeasance,  to  affect  grant  absolute  on  Its  face, 
must  be  recorded.  When  a  grant  of  real  property  pur- 
ports to  be  an  absolute  conveyance,  but  is  intended  to  be 
defeasible  on  the  performance  of  certain  conditions,  such 
grant  is  not  defeated  or  affected  as  against  any  person 
other  than  the  grantee  or  his  heirs  or  devisees,  or  persons 
having  actual  notice,  unless  an  instrument  of  defeasance. 


5§  2951-2955  MORTGAGE.  668 

duly  executed  and  acknowledged,  shall  have  been  recorded 
in  the  office  of  the  county  recorder  of  the  county  where 
th<5  property  is  situated.    En.  March  21,  1872. 

Cal.Rep.Cit.   119,  21  ;124,  327. 

See  sec.  1217,  ante. 

Deed  absolute  on  its  face,  when  a  mortgage:  See  sees. 
2924,  2925,  2950. 

§  2951.  By  whom  paid  after  property  passes  by  suc- 
cession or  will.  (Repealed.)  En.  March  21,  1872.  Rep. 
1873-4,  262. 

Cal.Rep.Cit.   64,  274;   124,  327. 

§  2952.  May  be  recorded.  Mortgages  of  real  property 
may  be  acknowledged  or  proved,  certified  and  recorded,  in 
like  manner  and  with  like  effect  as  grants  thereof.  En. 
March  21,  1872.    Am'd.  1873-4,  262. 

Cal.Rep.Cit.   46,  607;   46,  608;   109,  49;   124,  327;   124,  329. 

See  sees.  1169-1172  and  1213-1217,  ante. 

Fees  for  acknowledgment  and  recording:  Pol.  Code, 
sees.  798,  4235,  4245. 

Mortgages  recorded  in  separate  set  of  books;  Sec.  1171, 
ante. 


ARTICLE    III. 

MORTGAGE  OP  PERSONAL  PROPERTY. 
I 

§  2955.  What  personal  property  may  be  mortgaged. 

§  2956.  Form  of  personal  mortgage. 

§  2957.  When  void  as  to  third  persons. 

I  2958.  Mortgage  of  ships,  when  void  as  to  third  persons. 

§  2959.  Where  recorded. 

§  2960.  Property  in  transit,  where  to  be  recorded. 

§  2961.  Property  of  a  common  carrier,  where  to  be  recorded. 

§  2962.  Recorded  in  different  places. 

§  2963.  Personal   mortgage  may   be   recorded. 

§  2964.  Certified   copies  may   be   recorded,   when. 

§  2965.  Property  exempt  from  effect  of  mortgage,  when. 

§  2966.  May  be  taken  by  mortgagee  as  a  pledge,   when. 

§  2967.  How  foreclosed. 

§  2968.  Mortgage  property  may  be  levied  upon. 

§  2969.  Limitations  on  right  of  levy. 

§  2970.  Distribution  of  proceeds  of  sale  under  process. 

§  2971.  Sections  not  applicable  to  mortgage  of  certain  ships. 

§  2972.  Lien  of  a  mortgage  on  growing  crop. 

§  2955.     What    personal     property    may    be     mortgaged. 

Mortgages  may  be  made  upon  the  following  personal  prop- 
erty, and  none  other: 


669  MORTGAGE.  §  2955 

First — Locomotives,  engines,  and  other  rolling  stock  of 
a  railroad. 

Second — Steamboat  machinery,  the  machinery  used  by 
machinists,  foundrymen,  and  mechanics. 

Third — Steam  engines  and  boilers. 

Fourth — Mining  machinery. 

Fifth — Printing  presses  and  material. 

Sixth — Professional  libraries. 

Seventh — Instruments  of  surveyors,  physicians,  and  den- 
tists. 

Eighth — Upholstery,  furniture  and  household  goods. 

Ninth — Oil  paintings,  pictures  and  works  of  art. 

Tenth — All  growing  crops,  including  grapes  and  fruit. 

Eleventh — Vessels  of  more  than  five  tons  burden. 

Twelfth — Instruments,  negatives,  furniture  and  fixtures 
of  a  photograph  gallery. 

Thirteenth — The  machinery,  casks,  pipes,  tubes  and 
utensils  used  in  the  manufacture  or  storage  of  wine,  fruit 
brandy,  fruit  syrups  or  sugar;  also  wines,  fruit  brandy, 
fruit  syrup,  or  sugar,  with  the  cooperage  in  which  the  same 
are  contained. 

Fourteenth — Pianos  and  organs. 

Fifteenth — Iron  and  steel  safes. 

Sixteenth — Cattle,  horses,  mules,  swine,  sheep,  and 
goats,  and  the  increase  thereof. 

Seventeenth — Harvesters,  threshing  outfits,  hay  presses, 
wagons,  farming  implements,  and  the  equipments  of  a 
livery  stable,  including  buggies,  carriages,  harness,  robes. 

Eighteenth — Abstract  systems,  books,  maps,  papers,  and 
slips  of  searchers  of  records. 

Nineteenth — Raisins  and  dried  fruits,  cured  or  in  pro- 
cess of  being  cured.  Also  all  boxes,  fruit  graders,  drying 
trays  and  fruit  ladders.  En.  March  21,  1872.  Am'd.  1875-6, 
79;  1877-8,  88;  1887,  5;  1893,  84;  1895,  57;  1897,  95;  1903,  78. 

Cal.Rep.Cit.   56.631;   57,255;   63,   4;  71,334;   84,206; 

104,  26;  105,  469;  105,  470;  106,  679;  107,  147;  109.  199; 

109,  201;  112,  184;  124,  330;  127,  297;  131,  606;  131,  607. 

Subd.  5  —  94,  525.   Subd.  8—63.  333;  91,  286;  101,  10. 

Subd.  9  —  91,  639.  Subd.  10—115,  93;  123,  236;  124,  327. 
Subd.  16—116,  83;  126,  204;  133,  498. 

Removal  of  property  from  mortgaged  premises,  when 
larceny:    See  Pen.  Code.  sec.  502 Vj. 


S§  2956-2959  MORTGAGE.  570 

Further  chattel  mortgage  is  larcency:  See  Pen.  Code, 
sec.  538. 

§  2956.  Form  of  personal  mortgage.  A  mortgage  of  per- 
sonal property  may  be  made  in  substantially  the  follow- 
ing form: 

"This  mortgage,  made  the  day  of ,  in  the  year 

,  by  A  B,  of  ,  by  occupation  a ,  mortgagor,  to 

C  D,  of ,  by  occupation  a ,  mortgagee,  witnesseth: 

"That  the  mortgagor  mortgages  to  the  mortgagee  [here 
describe   the   property],   as   security   for   the   payment  to 

him  of dollars,  on  [or  before]  the day  of ,  in 

the  year  ,  with  interest  thereon   [or,  as  security  for 

the  payment  of  a  note  or  obligation,  describing  it,  etc.]. 
A    B."     En.  March  21,  1872. 

Cal.Rep.Cit.   63,  551;   91,  639;   106,  678;   124,  327. 

§2957.  When  void  as  to  third  persons.  A  mortgage  of 
personal  property  is  void  as  against  creditors  of  the  mort- 
gagor and  subsequent  purchasers  and  incumbrancers  of 
the  property  in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties 
thereto  that  it  is  made  in  good  faith  and  without  any 
design  to  hinder,  delay,  or  defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified  and  recorded, 

in  like  manner  as  grants  of  real  property.     En.  March  21, 

1872. 

Cal.Rep.Cit.  63,551;   63,552;  67,  34;  67,  57;  67,  58 

84,  556;   84,  557;   91,  63S  ;   94,  496;  104,  427;  105,  330 

105,  332;  105.  470;  106,  679;  108,  253;  108,  257;  115,  319 

115,  325;  121,  274;  124,  327;  127,  296;  127,  304;  127,  306 

127.  308;  127.  309;  12S,  105.   Subd.  1—130,  477;  131.  607. 

Recording:    See  sees.  2959,  2961-2965,  post. 

§  2958.  Mortgage  of  ships,  when  void  as  to  third  persons. 
A  mortgage  of  any  vessel  or  part  of  any  vessel  under  the 
flag  of  the  United  States  is  void  as  against  any  person 
(other  than  the  mortgagor,  his  heirs,  and  devisee,  and 
persons  having  actual  notice  thereof),  unless  the  mortgage 
is  recorded  in  the  office  of  the  collector  of  customs  where 
such  vessel  is  registered  or  enrolled.    En.  March  21,  1872. 

Cal.Rep.Cit.   124,   327. 

§  2959.  Where  recorded.  A  mortgage  of  personal  prop- 
erty must  be  recorded  in  the  office  of  the  county  recorder 


571  MORTGAGE.  §§  29G0-2963 

of  the  county  in  which  the  mortgagor  resides,  and  also  of 
the  county  in  which  the  property  mortgaged  is  situated,  or 
to  which  it  may  be  removed.    En.  March  21,  1872. 

Cal.Rep.Cit.      03,  ,^51;    115,  319;   115,  321;   115,  322;   115,  323; 
124,  327;   127,  298. 

Duty  of  recorder;    See  Pol.  Code,  sec.  4234  et  seq. 

Record  in  different  places:    See  sec.  2962. 

§  2960.  Property  in  transit,  where  to  be  recorded.  For 
the  purposes  of  this  article,  property  in  transit  from  the 
possession  of  the  mortgagee  to  the  county  of*  the  residence 
of  the  mortgagor,  or  to  a  location  for  use,  is,  during  a  rea- 
sonable time  for  such  transportation,  to  be  taken  as  situ- 
ated in  the  county  in  which  the  mortgagor  resides,  or 
where  it  is  intended  to  be  used.    En.  March  21,  1872. 

Cal.Rep.Cit.   124,   327. 
See  sec.  2965,  subd.  1. 

§2961.  Property  of  a  common  carrier,  where  to  be  re- 
corded. For  a  like  purpose,  personal  property  used  in 
conducting  the  business  of  a  common  carrier  is  to  be 
taken  as  situated  in  the  county  in  which  the  principal 
office  or  place  of  business  of  the  carrier  is  located.  En. 
March  21,  1872. 

Cal.Rep.Cit.   124,   327. 

§  2962.  Recorded  in  different  places.  A  single  nlortgage 
of  personal  property,  embracing  several  things  of  such 
character  or  so  situated  that  by  the  provisions  of  this 
article  separate  mortgages  upon  them  would  be  required 
to  be  recorded  in  different  places,  is  only  valid  in  respect 
to  the  things  as  to  which  it  is  duly  recorded.  En.  March 
21,  1872. 

Cal.Rep.Cit.   124,  327  ;   127,  310. 

County  where  property  is  situated:    Sec.  2959. 

§  2963.  Personal  mortgage  may  be  recorded.  Except  as 
it  is  otherwise  in  this  article  provided,  mortgages  of  per- 
sonal property  may  be  acknowledged,  or  proved  and  certi- 
fied, recorded  in  like  manner  and  with  like  effect  as  grants 
of  real  property;  but  they  must  be  recorded  in  books  kept 
for  personal  mortgages  exclusively.    En.  March  21,  1872. 

Cal.Rep.Cit.   124,   327. 

See  sees.  1169-1171  and  1213-1217,  ante. 


§§  29C4-2nC3  MORTGAGE.  572 

§  2964.  Certified  copies  may  be  recorded,  when.  A  cer- 
tified copy  ol'  a  mortgage  of  personal  property  once  re- 
corded may  be  recorded  in  any  other  county,  and  when 
so  recorded  the  record  thereof  has  the  same  force  and 
effect  as  though  it  was  of  the  original  mortgage.  En. 
March  21,  1872. 

Cal.Rep.Cit.  124,   327. 

§  2965.     Property  exempt  from  effect  of  mortgage,  when. 

When  personal  property  mortgaged  is  thereafter  by  the 
mortgagor  removed  from  the  county  in  which  it  is  situated, 
it  is,  except  as  between  the  parties  to  the  mortgage,  ex- 
empted from  the  operation  thereof,  unless  either: 

1.  The  mortgagee,  within  thirty  days  after  such  removal, 
causes  the  mortgage  to  be  recorded  in  the  county  to  which 
the  property  has  been  removed;  or, 

2.  The  mortgagee,  within  thirty  days  after  such  removal, 
takes  possession  of  the  property,  as  prescribed  in  the  next 
section.     En.  March  21,  1872. 

Cal.Rep.Cit.  115,  319;   115,  320;   115,  323;   124,  327;   127,  298. 

§  2966.     May  be  taken  by  mortgagee  as  a  pledge,  when. 

If  the  mortgagor  voluntarily  removes  or  perAits  the  re- 
moval of  the  mortgaged  property  from  the  county  in  which 
it  was  situated  at  the  time  it  was  mortgaged,  the  mort- 
gagee m"ay  take  possession  and  dispose  of  the  property  as 
a  pledge  for  the  payment  of  the  debt,  though  the. debt  is 
not  due.  En.  March  21,  1872. 
Cal.Rep.Cit.   124,   327. 

§  2967.  How  foreclosed.  A  mortgagee  of  personal  prop- 
erty, when  the  debt  to  secure  which  the  mortgage  was 
executed  becomes  due,  may  foreclose  the  mortgagor's  right 
of  redemption  by  a  sale  of  the  property,  made  in  the  man- 
ner and  upon  the  notice  prescribed  by  the  title  on  Pledge, 
or  by  proceedings  under  the  Code  of  Civil  Procedure.  En. 
March  21,  1872. 

Cal.Rep.Cit.   124,   327 

Sale  of  pledge:    See  sees.  3000  et  seq.,  post. 
Actual  notice  required:    Sec.  3002,  post. 
Foreclosure:    Code  Civ.  Proc,  sees.  726-729. 

§  2968.  iVlortgage  property  may  be  levied  upon.  Per- 
sonal property  mortgaged  may  be  taken  under  attachment 


573  MORTGAGE.  §§  2969-2972 

or  execution  issued  at  the  suit  of  a  creditor  of  the  mort- 
gagor.    En.  March  21,  1872. 

Cal.Rep.Cit.     56,218;      67,     59;     71,     70;     91,  121 ;   111,  234 ; 
124,  327. 

§  2969.  Limitations  on  rigiit  of  levy.  Before  the  prop- 
erty is  so  taken,  the  officer  must  pay  or  tender  to  the 
mortgagee  the  amount  of  the  mortgage  debt  and  interest, 
or  must  deposit  the  amount  thereof  with  the  county  clerk 
or  treasurer,  payable  to  the  order  of  the  mortgagee.  En. 
.March  21,  1872. 

Cal.Rep.Cit.     56,  218;      63,  551;      63,  552;      67,     59;      71,     70; 
91,  121;      91,  122;   111,  234;   124,  327;   126,  289;   126,  290; 
131,  556. 

Measure    of    special    owner's    damage    for    conversion: 

See   post,  sec.  33o8. 

§  2970.     Distribution  of  proceeds  of  sale  under  process. 

When  the  property  thus  taken  is  sold  under  process,  the 
officer  must  apply  the  proceeds  of  the  sale  as  follows: 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee, 
with  interest  from  the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds 
of  sales  under  execution  are  applied  in  other  cases.  En. 
March  21,  1872. 

Cal.Rep.Cit.   63,  552;   124,  327, 

§2971.  Sections  not  applicable  to  mortgage  of  certain 
ships.  Sections  2957,  2959,  2960,  2961,  2962,  2963,  2964, 
2965,  and  2966  do  not  apply  to  any  mortgage  of  a  ship  or 
part  of  a  ship  under  the  flag  of  the  United  States.  En. 
March  21,  1872. 

Cal.Rep.Cit.   124,   327. 

§  2972.     Lien  of  a  mortgage  on  growing  crop.     The  lien 

of  a  mortgage  on  a  growing  crop  continues  on  the  crop 

after   severance,   whether  remaining  in  its  original   state 

or  converted  into  another  product,  ^o  long  as  the  same 

remains  on  the  land  of  mortgagor.    En.  Stats.  1877-8,  89. 

Cal.Rep.Cit.     59,142;      63,       4^     70,197;     77,244;   107,     29; 
109.  201;  117,  416;  124,  327. 


S:  2986,  2987 


PLEDGE. 


574 


CHAPTER    III. 

PLEDGE. 

S  2986.  Pledge,  what. 

§  2987.  When  (.outract  Is  to  be  deemed  a  pledge. 

§  2988.  Delivery  essential  to  validity  of  pledge. 

§   2989.  Increase  of  thing. 

I   2990.  Lienor  may  pledge  property  to  extent  of  his  lien. 

§  2991.  Real    owner    cannot   defeat    pledge    of    property    transferred 

to  apparent  owner  lor  the  purpose  of  pledge. 

§  2992.  Pledge   lender,   what. 

§   2993.  Pledge  holder,  what. 

§  2994.  When  pledge   lender  may  withdraw  property  pledged. 

§  2995.  Obligations  of  pledge   holder. 

§  2996.  Pledge  holder  must  enforce  rights  of  pledgee. 

§  2997.  Obligation  of  pledgee  and  pledge  holder,  for  reward. 

§   2998.  Gratuitous  pledge  holder. 

§  2999.  Debtor's  misrepresentation  of  value  of  pledge. 

§   3000.  When  pledgee  may  sell. 

§   3001.  Sale  of  pledged  property. 

§  3002.  Notice  of  sale  to  pledgor, 

i   3003.  Waiver  of  notice  of  sale. 

§   3004.  Waiver  of  demand. 

§  3005.  Sale  must  be  by  auction. 

§  3006.  Pledgee's  sale  of  securities. 

§   3007.  Sale  on  the  demand  of  the  pledgor. 

§  3008.  Surplus  to  be  paid  to  pledgor. 

§   3009.  Pledgee  may  retain  all  that  can  become  due. 

§  3010.  Pledgee  or  pledge  holder  may  purchase. 

§  3011.  Pledgee  may  foreclose  right  of  redemption. 

§  2986.  Pledge,  what.  Pledge  is  a  deposit  of  personal 
property  by  way  of  security  for  the  performance  of  an- 
other act.     En.  March  21,  1872. 

Cal.Rep.Cit.      76,  172;    113,  466;   121,  519;   123,  648;   125,  187; 
133,  195. 

Increase  of  property  pledged:    Sec.  2989,  infra. 

Note. — Much  difficulty  has  arisen  in  determining 
whether  a  certain  transaction  is  a  pledge  or  a  chattel  mort- 
gage, the  question  generally  being  whether  the  title  has 
passed  or  not.  In  this  state,  it  has  been  seen,  title  never 
passes  in  case  of  property  conveyed  or  deposited  as  se- 
curity: Sec.  2888,  ante.  And,  also,  whenever  the  possession 
of  personal  property  is  transferred  as  security  only,  it  is 
to  be  treated  as  a  pledge:  Sec.  2987,  post.  And  even  a 
chattel  mortgage,  when  the  possession  of  the  property 
mortgaged  is  transferred  becomes  a  pledge:  Sec.  2924, 
and  feec.  2987.  The  question  is,  therefore,  much  simplified, 
possession  being  the  criterion. 

§  2987.  When  contract  is  to  be  deemed  a  pledge.  Every 
contract  by  which  the  possession  of  personal  property  is 


575  PLEDGE.  §§  2988-2994 

transferred,  as  security  only,  is  to  be  deemed  a  pledge. 
En.  March  21,  1872. 

Cal.Rep.Cit.   99,  518;    112,  602;   113,  467;   123,  648;   133,  195. 

§2988.     Delivery    essential    to    validity    cf    pledge.      The 

lien  of  a  pledge  is  dependent  on  possession,  and  no  pledge 

is   valid   until   the   property   pledged   is   delivered   to   the 

pledgee,   or  to  a  pledge   holder,  as   hereafter   prescribed. 

En.  March  21,  1872. 

Cal.Rep.Cit.     59,159;     59,168;     61,429;     71,  334 ;   112,     13; 
122,  283;   122,  470;    125,  187. 

§2989.  Increase  of  thing.  The  increase  of  property 
pledged  is  pledged  with  the  property.    En.  March  21,  1872. 

§2990.  Lienor  may  pledge  property  to  extent  of  his 
lien.  One  who  has  a  lien  upon  property  may  pledge  it  to 
the  extent  of  his  lien.    En.  March  2i,  1872. 

Compare  next  section. 

Lienor's  action  for  damages:    See  sec.  3338,  post, 

§2991.  Real  owner  cannot  defeat  pledge  of  property 
transferred  to  apparent  owner  for  the  purpose  of  pledge. 
One  who  has  allowed  another  to  assume  the  apparent 
ownership  of  property  for  the  purpose  of  making  any 
transfer  of  it,  cannot  set  up  his  own  title  to  defeat  a 
pledge  of  the  property,  made  by  the  other  to  a  pledgee 
who  received  the  property  in  good  faith,  in  the  ordinary 
course  of  business,  and  for  value.     En.  March  21,  1872. 

Cal.Rep.Cit.  52,  616;   59,  168;   90,  13;   121,  576;   124,  289. 

§  2992.  Pledge  lender,  what.  Property  may  be  pledged 
as  security  for  the  obligation  of  another  person  than  the 
owner,  and  in  so  doing  the  owner  has  all  the  rights  of  a 
pledgor  for  himself,  except  as  hereinafter  stated.  En. 
March  21,  1872. 

Cal.Rep.Cit.  133,   195. 

§  2993.  Pledge  holder,  what.  A  pledgor  and  pledgee 
may  agree  upon  a  third  person  with  whom  to  deposit  the 
property  pledged,  who,  if  he  accepts  the  deposit,  is  called 
a  pledge  holder.     En.  March  21,  1872. 

Cal.Rep.Cit.   130,   262. 

§2994.  When  pledge  lender  may  withdraw  property 
pledged.     One  who  pledges  property  as  security  for  the 


§§  2995-3000  PLEDGE.  576 

obligation  cf  another,  cannot  withdraw  the  property 
pledged  otherwise  than  as  a  pledgor  for  himself  might, 
and  if  he  receives  from  the  debtor  a  consideration  for  the 
pledge  he  cannot  withdraw  it  without  his  consent.  En. 
March  21,  1872. 

§2995.  Obligations  of  pledge  holder.  A  pledge  holder 
for  reward  cannot  exonerate  himself  from  his  undertak- 
ing; and  a  gratuitous  pledge  holder  can  do  so  only  by 
giving  reasonable  notice  to  the  pledgor  and  pledgee  to 
appoint  a  new  pledge  holder,  and  in  case  of  their  failure  to 
agree,  by  depositing  the  property  pledged  with  some  im- 
partial person,  who  will  then  be  entitled  to  a  reasonable 
compensation  for  his  care  of  the  same.  En.  March  21, 
1872. 

§  2996.     Pledge   holdar  must   enforce    rights    of   pledgee. 

A  pledge  holder  must  enforce  all  the  rights  of  the  pledgee, 
unless  authorized  by  him  to  waive  them.  En.  March  21, 
1872.       . 

Cal.Rep.Cit.  121,  520  ;   130,  262. 

§2997.  Obligation  of  pledgee  and  pledge  holder,  for  re- 
ward. A  pledgee,  or  a  pledge  holder  for  reward,  assumes 
the  duties  and  liabilities  of  a  depositary  for  reward.  En. 
March  21,  1872. 

Depositary  for  reward:  See  sec.  1852,  ante.  See  sec. 
3007,  post. 

§  2998.  Gratuitous  pledge  holder.  A  gratuitous  pledge 
holder  assumes  the  duties  and  liabilities  of  a  gratuitous 
depositary.     En.  March  21,  1872. 

Cal.Rep.Cit.   125,   599. 

See  ante,  sees.  1845  and  2995. 

§2999.  Debtor's  misrepresentation  of  value  of  pledge. 
Where  a  debtor  has  obtained  credit,  or  an  extension  of 
time,  by  a  fraudulent  misrepresentation  of  the  value  of 
property  pledged  by  or  for  him,  the  creditor  may  demand 
a  further  pledge  to  correspond  with  the  value  represented; 
and  in  default  thereof  may  recover  his  debt  immediately, 
though  it  be  not  actually  due.    En.  March  21,  1872. 

§3000.  When  pledgee  may  sell.  When  performance  of 
the  act  for  which  a  pledge  is  given  is  due,  in  whole  or  iu 


577  PLEDGE.  §§  3003  -3006 

part,  the  pledgee  may  collect  what  is  due  to  him  by  a  sale 
of  property  pledged,  subject  to  the  rules  and  exceptions 
hereinafter  prescribed.     En.  March  21,  1872. 

Cal.Rep.Cit.   66,  98;   125,  600;   128,  208. 

Another  remedy  is  provided  by  sec.  3011,  post.  And  sale 
is  restricted  in  case  of  most  choses  in  action  by  sec.  3006, 
post.    See  also  sec.  2890,  ante. 

Foreclosure  of  right  of  redemption:     Sec.  3011. 

§3001.  Sale  of  pledged  property.  Before  property 
pledged  can  be  sold,  and  after  performance  of  the  act  for 
which  it  is  security  is  due,  the  pledgee  must  demand  per- 
formance thereof  from  the  debtor,  if  the  debtor  can  be 
found.     En.  March  21,  1872.     Am'd.  1873-4,  262. 

Cal.Rep.Cit.   62,  439;   82,  200;   125,  600;   128,  208. 

§  3002.  Notice  of  sale  to  pledgor.  A  pledgee  must  give 
actual  notice  to  the  pledgor  of  the  time  and  place  at  which 
the  property  pledged  will  be  sold,  at  such  a  reasonable 
time  before  the  sale  as  will  enable  the  pledgor  to  attend. 
En.  March  21,  1872. 

Cal.Rep.Cit.  68,  526;   82,  200  ;   125,  600;   128,  208. 

§  3003.  Waiver  of  notice  of  sale.  Notice  of  sale  may  be 
waived  by  a  pledgor  at  any  time;  but  is  not  waived  by  a 
mere  waiver  of  demand  of  performance.  En.  March  21, 
1872. 

Cal.Rep.Cit.   68,  526;   82,  201;   125,  600. 

§  3004.  Waiver  of  demand.  A  debtor  or  pledgor  waives 
a  demand  of  performance  as  a  condition  precedent  to  a 
sale  of  the  property  pledged,  by  a  positive  refusal  to  per- 
form, after  performance  is  due;  but  cannot  waive  it  in 
any  other  manner  except  by  contract.    En.  March  21,  1872. 

Cal.Rep.Cit.  82,  201 ;   125,  600. 

§  3005.  Sale  must  be  by  auction.  The  sale  by  a  pledgee, 
of  property  pledged,  must  be  made  by  public  auction,  in 
the  manner  and  upon  the  notice  to  the  public  usual  at  the 
place  of  sale,  in  respect  to  auction  sales  of  similar  prop- 
erty; and  must  be  for  the  highest  obtainable  price.  En. 
March  21,  1872. 

Cal.Rep.Cit.   66,  98;   68,  526;   82,  200;   113,  478;   125,  600, 

§  3006.  Pledgee's  sale  of  securities.  A  pledgee  cannot 
sell  any  evidence  of  debt  pledged  to  him,  except  the  obli- 

Civ.  Code— 25 


§§  3007-3011  PLEDGES.  B78 

gations   of   governments,   states,   or   corporations;    but  he 

may  collect  the  same  when  due.    En.  March  21,  1872. 

Cal.Rep.Cit.     85,  129;  114,  129;   121,  520;   125,  600;   127,  175; 
134,  289. 

§  3007.  Sale  on  the  demand  cf  the  pledgor.  Whenever 
property  pledged  can  be  sold  for  a  price  sufficient  to 
satisfy  the  claim  of  the  pledgee,  the  pledgor  may  require 
it  to  be  sold,  and  its  proceeds  to  be  applied  to  such  satis- 
faction, when  due.    En.  March  21,  1872. 

Cal.Rep.Cit.   125,   600. 

See  sec.  3009,  infra. 

§  3008.  Surplus  to  be  paid  to  pledgor.  After  a  pledgee 
has  lawfully  sold  property  pleuged,  or  otherwise  collected 
its  proceeds,  he  may  deduct  therefrom  the  amount  due 
under  the  principal  obligation,  and  the  necessary  expenses 
of  sale  and  collection,  and  must  pay  the  surplus  to  the 
pledgor,  on  demand.    En.  March  21,  1872. 

Cal.Rep.Cit.  101,  453;   125,  600. 

§  3009.     Pledgee    may    retain    all    that   can    become    due. 

When  property  pledged  is  sold  by  order  of  the  pledgor 
before  the  claim  of  the  pledgee  is  due,  the  latter  may 
retain  out  of  the  proceeds  all  that  can  possibly  become 
due  under  his  claim  until  it  becomes  due.  En.  March  21, 
1872.  Am'd.  1873-4,  262. 
Cal.Rep.Cit.   125,   600. 

§  3010.     Pledgee  or  pledge  holder  may  purchase.    When- 
ever  property   pledged   is   sold   at   public   auction,   in   the 
manner  provided   by  section  three   thousand   and   five  of 
this  code,  the  pledgee  or  pledge  holder  may  purchase  said 
property  at  such  sale.    En.  March  21,  1872.    Am'd.  1895,  27. 

Cal.Rep.Cit.  62,  439  ;125,  600. 

§3011.  Pledgee  may  foreclose  right  of  redemption.  In- 
stead of  selling  property  pledged,  as  hereinbefore  pro- 
vided, a  pledgee  may  foreclose  the  right  of  redemption  by 
a  judicial  sale,  under  the  direction  of  a  competent  court; 
and  in  that  case  may  be  authorized  by  the  court  to  pur- 
chase at  the  sale.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  98;   85,  129;    125,  600;   127,  175;    134,  289. 

Pawnbrokers:    Pen.  Code,  sees.  338-343. 


579  BOTTOMRY.  SS  3017-3020 

CHAPTER    IV. 
BOTTOMRY. 

§  3017.  Bottomry,  what. 

§  3018.  Owner  of  ship  may  hypothecate. 

§  3019.  When  master  may  hypothecate  ship. 

§  3020.  Same. 

§  3021.  When  master  may  hypothecate  freight  money. 

§   3022.  Rate  of  interest. 

§  3023.  Rights  of  lender,  when  no  necessity  for  bottomry  existed. 

§   3024.  Stipulation  for  personal  liability  void. 

§  3025.  When  money  loaned  is  to  be  repaid. 

§   3026.  When   bottomry  loan   becomes  due. 

§  3027.  Bottomry   lien,   how   lost. 

§  3028.  Preference  of  bottonjry  lien  over  other  liens. 

§  3029.  Priority  of  bottomry  liens. 

§  3017.  Bottomry,  what.  Bottomry  is  a  contract  by 
wliich  a  ship  or  its  freightage  is  hypothecated  as  security 
for  a  loan,  which  is  to  be  repaid  only  in  case  the  ship 
survives  a  particular  risk,  voyage,  or  period.  En.  March 
21,  1872. 

It  is  independent  of  possession:  Sec.  3027,  post,  and 
cases  cited. 

Insurance  by  owner:    See  sec.  2C60,  ante. 

§  3018.  Owner  of  ship  may  hypothecate.  The  owner  of 
a  ship  may  hypothecate  it  or  its  freightage,  upon  bottomry, 
for  any  lawful  purpose,  and  at  any  time  and  place.  En. 
March  21,  1872. 

§  3019.  When  master  may  hypothecate  ship.  The 
master  of  a  ship  may  hypothecate  it  upon  bottomry  only 
for  the  purpose  of  procuring  repairs  or  supplies  which  are 
necessary  for  accomplishing  the  objects  of  the  voyage,  or 
for  securing  the  safety  of  the  ship.    En.  March  21,  1872. 

Freightage,  the  authority  of  the  master  extends  to: 
Sec.  3021. 

§  3020.  Same.  The  master  of  a  ship  can  hypothecate  it 
upon  bottomry  only  when  he  cannot  otherwise  relieve  the 
necessities  of  the  ship,  and  is  unable  to  reach  adequate 
funds  of  the  owner,  or  to  obtain  any  upon  the  personal 
credit  of  the  owner,  and  when  previous  communication 
with  him  is  precluded  by  the  urgent  necessity  of  the  case. 
En.  March  21,  1872. 

May  sell  ship  and  cargo:     See  sees.  2377-2379,  ante. 


§§  3021-3027  BOTTOMRY.  S80 

§  3021.  When  master  may  hypothecate  freight  money. 
The  master  of  a  ship  may  hypothecate  freightage  upon 
bottomry,  under  the  same  circumstances  as  those  which 
authorize  an  hypothecation  of  the  ship  by  him.  En.  March. 
21,  1S72. 

§  3022.  Rate  of  interest.  Upon  a  contract  of  bottomry, 
the  parties  may  lawfully  stipulate  for  a  rate  of  interest 
higher  than  that  allowed  by  the  law  upon  other  contracts. 
But  a  competent  court  may  reduce  the  rate  stipulated  when 
it  appears  unjustifiable  and  exorbitant.  En.  March  21, 
1872. 

§  3023.  Rights  of  lender,  when  no  necessity  for  bot- 
tomry existed.  A  lender  upon  a  contract  of  bottomry, 
made  by  the  master  of  a  ship,  as  such,  may  enforce  the 
contract,  though  the  circumstances  necessary  to  author- 
ize the  master  to  hypothecate  the  ship  did  not  in  fact 
exist,  if,  after  due  diligence  and  inquiry,  the  lender  had 
reasonable  grounds  to  believe,  and  did  in  good  faith  be- 
lieve, in  the  existence  of  such  circumstances.  En.  March 
21,  1872. 

§3024.  Stipulation  for  personal  liability  void.  A  stipu- 
lation in  a  contract  of  bottomry,  imposing  any  liability 
for  the  loan  independent  of  the  maritime  risks,  is  void. 
En.  March  21,  1872. 

§  3025.  When  money  loaned  is  to  be  repaid.  In  case  of 
a  total  loss  of  the  thing  hypothecated,  from  a  risk  to  which 
the  loan  was  subject,  the  lender  upon  bottomry  can  re- 
cover nothing;  in  case  of  a  partial  loss,  he  can  recover 
only  to  the  extent  of  the  net  value  to  the  owner  of  the 
part  saved.    En.  March  21,  1872. 

§  3026.  When  bottomry  loan  becomes  due.  Unless  it  is 
otherwise  expressly  agreed,  a  bottomry  loan  becomes  due 
immediately  upon  the  termination  of  the  risk,  although  a 
term  of  credit  is  specified  in  the  contract.     En.  March  21, 

1872. 

§3027.  Bottomry  lien,  how  lost.  A  bottomry  lien  is 
independent  of  possession,  and  is  lost  by  omission  to  en- 
force it  within  a  reasonable  time.    En.  March  21,  1872. 


581  RESPONDENTIA.  §§  3028-3039 

§  3028.  Preference  cf  bottomry  lien  over  other  liens.  A 
bottomry  lien,  if  created  out  of  a  real  or  apparent  neces- 
sity, in  good  faith,  is  preferred  to  every  other  lien  or 
claim  upon  the  same  thing,  excepting  only  a  lien  for  sea- 
men's wages,  a  subsequent  lien  of  materialmen  for  sup- 
plies or  repairs  indispensable  to  the  safety  of  the  ship, 
and  a  subsequent  lien  for  salvage.     En.  March  21,  1872. 

Seamen's  wages:     Ante,  sees.  2048-2066. 

§  3029.  Priority  of  bottomry  liens.  Of  two  or  more 
bottomry  liens  on  the  same  subject,  the  latter  in  date  has 
preference,   if   created   out   of   necessity.     En.    March   21, 

1872. 

CHAPTER    V. 

RESPONDENTIA. 

§  3036.  Respondentia,  what. 

I  3037.  Respondentia  by  owner, 

f  3038.  Respondentia  by  master. 

§  3039.  Rate   of   interest. 

§  3040.  Obligations  of  shipowner. 

§  3036.     Respondentia,  what.    Respondentia  is  a  contract 

by  which  a  cargo,  or  some  part  thereof,  is  hypothecated 
as  security  for  a  loan,  the  repayment  of  which  is  depend- 
ent on  maritime  risks.    En.  March  21,  1872. 

§  3037.  Respondentia  by  owner.  The  owner  of  cargo 
may  hypothecate  it  upon  respondentia,  at  any  time  and 
place,  and  for  any  lawful  purpose.     En.  March  21,  1872. 

§  3038.  Respondentia  by  master.  The  master  of  a  ship 
may  hypothecate  its  cargo  upon  respondentia  only  in  a 
case  in  which  he  would  be  authorized  to  hypothecate  the 
ship  and  freightage,  but  is  unable  to  borrow  sufficient 
money  thereon  for  repairs  or  supplies  which  are  neces- 
sary foj  the  successful  accomplishment  of  the  voyage; 
and  he  cannot  do  so,  even  in  such  case,  if  there  is  no 
reasonable  prospect  of  benefiting  the  cargo  thereby.  En. 
March  21,  1872. 

Master  may  sell  cargo:     Sec.  2379,  ante. 

§  3039.  Rate  of  interest.  The  provisions  of  sections 
3022  to  3029  apply  equally  to  loans  on  respondentia.  En. 
March  21.  1872. 


8§  3040-3047  OTHER     LIENS.  582 

§  3040.  Obligations  of  shipowner.  The  owner  of  a  ship 
is  bound  to  repay  to  the  owner  of  its  cargo  all  which  the 
latter  is  compelled  to  pay  under  a  contract  of  respondentia 
made  by  the  master,  iu  order  to  discharge  its  lien.  En. 
March  21,  1872. 

See  sec.  2385,  ante. 

Master  personally  responsible:     Sec.  2383,  ante. 


CHAPTER    VI. 

OTHER    LIENS. 

§  3046.  Lien  of  seller  of  real  property. 

§   3047.  Wheu  transfer  of  contract  waives  lien. 

§  3048.  Extent  of  seller's  lien. 

§   3049.  Lien  of  seller  of  personal  property. 

§  3050.  Purchaser's  lien  on  real  property. 

§  3051.  Lien  on  personal  property  for  service  performed. 

§   3052.  Liens  on  personal  property. 

§   3053.  Lien  of  factor. 

§   3054.  Banker's  lien. 

I  3055.  Shipmaster's  lien.  , 

S   3056.  Seamen's   lien. 

§  3057.  Officers'  lien. 

§   3058.  Judgment  iien. 

§   3059.  Mechanic's  lien. 

§  3060,  Lien  on  ships. 

§3046.     Lien  of  seller  of  real  property.     One  who  sells 

real  property  has  a  vendor's  lien  thereon,  independent  of 

possession,  for  so  much  of  the  price  as  remains   unpaid 

and  unsecured  otherwise  than  by  the  personal  obligation 

of  the  buyer.    En.  March  21,  1872. 

Cal.Rep.Cit.     57,471;     87,625;     89,     93;     98,     33 ;   116,  259 ; 
119,  372;   119,  373;   123,  212;   125,  360. 

A  transfer  of  personal  security  waives  the  lien:  Sec. 
3047,  infra. 

Transfer  by  vendee  to  bona  fide  purchaser  or  incum- 
brancer discharges  lien:    Sec.  3048,  infra. 

§  3047.  When  transfer  of  contract  waives  lien.  Where 
a  buyer  of  real  property  gives  to  the  seller  a  written  con- 
tract for  payment  of  all  or  part  of  the  price,  an  absolute 
transfer  of  such  contract  by  the  seller  waives  his  lien  to 
the  extent  of  the  sum  payable  under  the  contract,  but  a 
transfer  of  such  contract  in  trust  to  pay  debts,  and  return 
the  surplus,  is  not  a  waiver  of  the  lien.  En.  March  21, 
1872. 

Cal.Rep.Cit.  74,  585;   87,  625;   89,  93;   123,  212;   125,  360. 


583  OTHER    LIENS.  §§  3048-3051 

§3048.  Extent  of  seller's  lien.  The  liens  defined  in 
sections  3046  and  3050  are  valid  against  every  one  claim- 
ing under  the  debtor,  except  a  purchaser  or  incumbrancer 
,in  good  faith  and  for  value.    En.  March  21,  1872. 

Cal.Rep.Cit.  125,   360. 

See  sec.  19,  ante. 

§3049.     Lien   of  seller   of   personal    property.     One   who 

sells  personal  property  has  a  special  lien  thereon,  depend- 
ent on  possession,  for  its  price,  if  it  is  in  his  possession 
when  the  price  becomes  payable,  and  may  enforce  his  lien 
in  like  manner  as  if  the  property  was  pledged  to  him  for 
the  price.    En.  March  21,  1872. 

Cal.Rep.Cit.  77,  144;   94,  17;  106,  445;   121,  246. 

See  sec.  3002,  ante. 

§  3050.  Purchaser's  lien  on  real  property.  One  who 
pays  to  the  owner  any  part  of  the  price  of  real  property, 
under  an  agreement  for  the  sale  thereof,  has  a  special 
lien  upon  the  property,  independent  of  possession,  for  such 
part  of  the  amount  paid  as  he  may  be  entitled  to  recover 
back,  in  case  of  a  failure  of  consideration.  En.  March  21, 
1872. 

Cal.Rep.Cit.  87,  55;   103,  289;   103,  293;   113,  664;   125,  360. 

§  3051.  Lien  on  personal  property  for  service  performed. 
Every  person  who,  while  lawfully  in  possession  of  an 
article  of  personal  property,  renders  any  service  to  the 
owner  thereof,  by  labor  or  skill,  employed  for  the  protec- 
tion, improvement,  safekeeping,  or  carriage  thereof,  has 
a  special  lien  thereon,  dependent  on  possession,  lor  the 
compensation,  if  any,  which  is  due  to  him  from  ihe  owner 
for  such  service;  and  livery  or  boarding  or  feed  stable 
proprietors,  and  persons  pasturing  horses  or  stock,  have  a 
lien,  dependent  on  possession,  for  their  compensation  in 
caring  for,  boarding,  feeding,  or  pasturing  such  horses  or 
stock;  and  laundry  proprietors  and  persons  conducting  a 
laundry  business  have  a  general  lien,  dependent  on  pos- 
session, upon  all  personal  property  in  their  hands  belong- 
ing to  a  customer,  for  the  balance  due  them  from  such 
customer  for  laundry  work.  En.  March  21,  l&'U.  Am'd. 
1877-8,  89;   1900-01,  270. 

Cal.Rep.Cit.   53,  353;    100,  410;   121,  9. 

Carriers'  lien:    Sees.  2144,  2191. 


§§  3052-3055  OTHER    LIENS.  584 

§  3052.  Liens  on  personal  property.  A  person  who 
makes,  alters,  or  repairs  any  article  of  personal  property, 
at  the  request  of  the  owner,  or  legal  possessor  of  the 
property,  has  a  lien  on  the  same  for  his  reasonable  charges 
for  work  done  and  materials  furnished,  and  may  retain 
possession  of  the  same  until  the  charges  are  paid.  If  not 
paid  within  two  months  after  the  work  is  done,  the  person 
may  proceed  to  sell  the  property  at  public  auction,  by 
giving  ten  days'  public  notice  of  the  sale  by  advertising 
in  some  newspaper  published  in  the  county  in  which  the 
work  was  done;  or,  if  there  be  no  newspaper  published  in 
the  county,  then  by  posting  up  notices  of  the  sale  in  three 
of  the  most  public  places  in  the  town  where  the  work 
was  done,  for  ten  days  previous  to  the  sale.  The  pro- 
ceeds of  the  sale  must  be  applied  to  the  discharge  of  the 
lien  and  the  cost  of  keeping  and  selling  the  property;  the 
remainder,  if  any,  must  be  paid  over  to  the  owner  thereof. 
En.  March  21,  1872. 

Cal.Rep.Cit.  92,  658;   121,  9. 

Lien  in  favor  of  owner  of  propagating  animal:  See  post, 
Appendix,  title  Liens. 

§  3053.  Lien  of  factor.  A  factor  has  a  general  lien,  de- 
pendent on  possession,  for  all  that  is  due  to  him  as  such, 
upon  all  articles  of  commercial  value  that  are  intrusted 
to  him  by  the  same  principal.     En.  March  21,  1872. 

Power  of  pledging:    See  sec.  2991,  ante. 

Factors'  enforcement  of  lien:    Ante,  sec.  2027. 

Commission  merchant  making  advances  may  sell  prop- 
erty, when:    See  Pol.  Code,  sec.  3156. 

§  3054.  Banker's  lien.  A  banker  has  a  general  lien,  de- 
pendent on  possession,  upon  all  property  in  nis  hands 
belonging  to  a  customer,  for  the  balance  due  to  him  from 
such  customer  in  the  course  of  the  business.  En.  March 
21,  1872. 

Cal.Rep.Cit.  63,  364. 

§3055.  Shipmaster's  lien.  'The  master  of  a  ship  has  a 
general  lien,  independent  of  possession,  upon  the  ship 
and  freightage,  for  advances  necessarily  made  or  liabili- 
ties necessarily  incurred  by  him  for  the  benefit  of  the 
ship,  but  has  no  lien  for  his  wages.    En.  March  21,  1872. 


585  STOPPAGE    IN    TRANSIT.  §§  3056-3076 

§  3056.  Seamen's  lien.  The  mate  and  seamen  of  a  ship 
have  a  general  lien,  independent  of  possession,  upon  the 
ship  and  freightage,  for  their  wages,  which  is  superior  to 
every  other  lien.    En.  March  21,  1872. 

§3057.  Officers'  lien.  An  officer  who  levies  an  attach- 
ment or  execution  upon  personal  property  acquires  a 
special  lien,  dependent  on  possession,  upon  such  property, 
which  authorizes  him  to  hold  it  until  the  process  is  dis- 
charged or  satisfied,  or  a  judicial  sale  of  the  property  is 
had.    En.  March  21,  1872. 

Attachment  and  execution:  See  Code  Civ.  Proc,  sees. 
542,  682,  688,  and  690. 

§3058.     Judgment  lien.     The  lien  of  a  judgment  is  regu- 
lated by  the  Code  of  Civil  Procedure.    En.Marcn  2i,  1872. 
Judgment  lien:    See  Code  Civ.  Proc,  sees.  671,  674. 

§3059.  Mechanic's  lien.  The  liens  of  mechanics,  for 
materials  and  services  upon  real  property,  are  regulated 
by  the  Code  of  Civil  Procedure.    En.  March  21,  1872. 

Mechanics'  liens:     See  Code  Civ.  Proc,  sees.  1183-1203. 

See  also,  ante,  sec.  3052;  post.  Appendix,  title  Liens. 

§  3060.  Lien  on  ships.  Debts  amounting  to  at  least 
fifty  dollars,  contracted  for  the  benefit  of  ships,  are  liens 
in  the  cases  provided  by  the  Code  of  Civil  Procedure.  En. 
March  21,  1872. 

Lien  of  innkeepers  and  boarding-house  keepers:  See 
sees.  1861-1863  of  this  code.  Liens  for  wages,  etc.:  Code 
Civ.  Proc,  sees.  1204-1207. 

Liens  for  services  performed  for  ships:  See  Code  Civ. 
Proc,  sec.  813. 

CHAPTER   Vn. 

STOPPAGE    IN    TRANSIT. 

§  3076.  When  consignor  may  stop  goods. 

§  3077.  What  is  insolvency  of  consignee. 

§   3078.  Transit,  when  ended. 

§   3079.  Stoppage,  how  effected. 

§  3080.  Effect  of  stoppage. 

§  3076.  When  consignor  May  stop  goods.  A  seller  or 
consignor  of  property,  whose  claim  for  its  price  or  pro- 


§§  3077-3080  STOPPAGE    IN    TRANSIT.  5S5 

ceeds  has  not  been  extinguished,  may,  upon  the  insolvency 
of  the  buyer  or  consignee  becoming  known  to  him  after 
parting  with  the  property,  stop  it  while  on  its  transit  to 
the  buyer  or  consignee,  and  resume  possession  thereof. 
En.  March  21,  1872. 

That  bills  of  lading  are  negotiable:  See  ante,  sees. 
2127,  2128. 

§  3077.  What  is  insolvency  of  consignee.  A  person  is 
insolvent,  within  the  meaning  of  the  last  section,  when  he 
ceases  to  pay  his  debts  in  the  manner  usual  with  persons 
of  his  business,  or  when  he  declares  his  inability  or  un- 
willingness to  do  so.    En.  March  21,  1872. 

§3078.  Transit,  when  ended.  The  transit  of  property 
is  at  an  end  when  it  comes  into  the  possession  of  the 
consignee,  or  into  that  of  his  agent,  unless  such  agent  is 
employed  merely  to  forward  the  property  to  the  consignee. 
En.  March  21,  1872. 

§  3079.  Stoppage,  how  effected.  Stoppage  in  transit  can 
be  effected  only  by  notice  to  the  carrier  or  depositary  of 
the  property,  or  by  taking  actual  possession  thereof.  En. 
March  21,  1872. 

§  3080.  Effect  of  stoppage.  Stoppage  in  transit  does 
not,  of  itself,  rescind  a  sale,  but  is  a  means  of  enforcing 
the  lien  of  the  seller.    En.  March  21,  1872. 


687  NEGOTIABLE    INSTRUMENTS.  §§  3086,  3087 

TITLE    XV. 

NEGOTIABLE    INSTRUMENTS. 

Chapter  I.     Negotiable    Instruments    in    General,    §§  3086- 
3165. 
II.     Bills  of  Exchange,  §§  3171-3238. 

III.  Promissory  Notes,   §§   3244-3248. 

IV.  Checks,   §§   3254,   3255. 

V.     Bank     Notes     and     Certificates     of     Deposit, 
§§  3261,  3262. 

CHAPTER    I. 

NEGOTIABLE    INSTRUMENTS    IN    GENERAL. 

Article  I.  General   Definitions,   §§  3086-3095. 

II.  Interpretation,    §§  3099-3104. 

III.  Indorsement,   §§  3108-3125. 

IV.  Presentment  for  Payment,   §§  3130-3137. 
V.  Dishonor,   §§  3141-3151. 

VI.      Excuse  of  Presentment  and  Notice,   §§  3155-3160. 
VII.     Extinction,  §§  3164-3165. 

ARTICLE    I. 

GENERAL    DEFINITIONS. 

§  3086.  To  what  Instruments  this  title  is  applicable. 

§  3087.  Negotiable    instrument,    what. 

§  3088.  Must  be  for  unconditional  payment  of  money. 

§  3089.  Payee. 

§  3090.  Instrument  may  be  in  alternative. 

§  3091.  Date,  etc. 

§  3092.  May  contain  a  pledge,  etc. 

§  3093.  What  it  must  not  contain. 

§  3094.  Date. 

I  3095.  Different  classes  of  negotiable  instruments. 

§  3086.     To    what    instruments    this    title    is    applicable. 

The  provisions  of  this  title  apply  only  to  negotiable  in- 
struments, as  defined  in  this  article.    En.  March  21,  1872. 

Cal.Rep.Cit.   94,  145. 

§  3087.  Negotiable  instrument,  what.  A  negotiable  in- 
strument is  a  written  promise  or  request  for  the  payment 
of  a  certain  sum  of  money  to  order  or  bearer,  in  conformity 
to  the  provisions  of  this  article.     En.  March  21,  1872. 

Cal.Rep.Cit.      55,566;      64,391;      68,548;      81,327;      82,639; 
103,  324;    131,  386. 

Fictitious  payee:    See  sees.  3102,  3103. 


55  3088-3095  NEGOTIABLE    INSTRUMENTS.  588 

§3088.  Must  be  for  unconditional  payment  of  money. 
A  negotiable  instrument  must  be  made  payable  in  money 
only,  and  without  any  condition  not  certain  of  fulfillment. 
En.  March  21,  1872. 

Cal.Rep.Cit.   74,  596 ;   82,  639  ;   133,  685. 

Other  contract  In  instrument:   See  infra,  sec.  3093. 

§  3089.  Payee.  The  person  to  whose  order  a  negotiable 
instrument  is  made  payable  must  be  ascertainable  at  the 
time  the  instrument  is  made.     En.  March.  21,  1872. 

Fictitious  payee:    See  sees.  3102,  3103. 

Indorsement  in  blank:    See  sec.  3125. 

§  3090.  Instrument  may  be  in  alternative.  A  negotiable 
instrument  may  give  to  the  payee  an  option  between  the 
payment  of  the  sum  specified  therein  and  the  performance 
of  another  act;  but  as  to  the  latter,  the  instrument  is  not 
within  the  provisions  of  this  title.    En.  March  21,  18(/. 

§  3091.  Date,  etc.  A  negotiable  instrument  may  be  with 
or  without  date,  and  with  or  without  designation  of  the 
time  or  place  of  payment.    En.  March  21,  1872. 

Antedating:     See  post,  sec.  3094. 

Time  of  payment:     See  post,  sec.  3248. 

Place  of  payment:    See  sees.  3100,  3130,  3131,  subd.  4. 

§  3092.  May  contain  a  pledge,  etc.  A  negotiable  in- 
strument may  contain  a  pledge  of  coUatei-al  security,  with 
authority  to  dispose  thereof.    En.  March  21,  1872. 

§  3093.  What  it  must  not  contain.  A  negotiable  instru- 
ment must  not  contain  any  other  contract  than  such  as  is 
specified  in  this  article.     En.  March  21,  1872. 

Cal.Rep.Cit.   64,  391;   68,  548;   82,  639;    131,  386;   133,  685. 

§  3094.  Date.  Any  date  may  be  inserted  by  the  maker 
of  a  negotiable  instrument,  whether  past,  present,  or 
future,  and  the  instrument  is  not  invalidated  by  nis  death 
or  incapacity  at  the  time  of  the  nominal  date.  En.  March 
21,  1872. 

§  3095.      Different     classes     of     negotiable     instruments. 

There  are  six  classes  of  negotiable  instruments,  namely: 

1.  Bills  of  exchange; 

2.  Promissory  notes; 


689  NEGOTIABLE    INSTRUMENTS.  §§  3099-310> 

3.  Bank  notes; 

4.  Checks; 

5.  Bonds; 

6.  Certificates  of  deposit.    En.  March  21,  1872. 

Cal.Rep.Cit.   64,  391;    77,  641;   130,  548. 
Bills  of  lading:    Ante,  see.  2127. 

Certificates  of  stopk  are  not  negotiable  instruments:  See 
ante,  sec.  324. 

Bills  of  exchange:    See  post,  sees.  3171  et  seq. 
Promissory  notes:      See  post,  sees.  3244  et  seq. 
Bank  notes:      See  post,  sec.  3261. 
Checks:    See  post,  sees.  3254  et  seq. 

ARTICLE    II. 

INTERPRETATION    OF    NEGOTIABLE    INSTRUMENTS. 

§  3099.  Time  of  payment. 

§  3100.  Place  of  payment  not  specified. 

§  3101.  Instruments   payable   to   a   person   or   his   order,   how   con- 
strued. 

§  3102.  Unindorsed  note,  when  negotiable. 

§  3103.  Fictitious  payee. 

§  3104.  Presumption  of  consideration. 

§  3099.  Time  of  payment.  A  negotiable  instrument 
which  does  not  specify  the  time  of  payment  is  payable 
immediately.    En.  March  21,  1872. 

Cal.Rep.Cit.  130,   548. 

Time  of  payment:     See  ante,  see.  3091. 

§  3100.  Place  of  payment  not  specified.  A  negotiable 
instrument  which  does  not  specify  a  place  of  payment  is 
payable  at  the  residence  or  place  of  business  of  the  maker, 
or  wherever  he  may  be  found.  En.  March  21,  1872.  Am'd. 
1873-4,  262. 

Cal.Rep.Cit.   113,   24. 

Place  of  payment. — Where  no  place  of  payment  is  ex- 
pressed in  a  bill,  the  drawee's  place  of  residence  is 
understood:    Post,  sec.  3131,  subd.  4. 

§3101.  Instruments  payable  to  a  person  or  his  order, 
how  construed.  An  instrument,  otherwise  negotiable  in 
form,  payable  to  a  person  named,  but  with  the  words 
ddded,  "or  to  his  order,"  or  "to  bearer,"  or  words  equiva- 
lent thereto,  is  in  the  former  ease  payable  to  the  writtno 


§§3102-3108  NEGOTIABLE    INSTRUMENTS.  590 

order  of  such  person,  and  in  the  latter  case  paya'.:l8  to  the 
bearer.    En.  March  21,  1872. 

Cal.Rep.Cit.   61,   347. 

§3102.  Unindorsed  note,  when  negotiable.  A  negotiable 
instrument,  made  payable  to  the  order  of  the. maker,  or 
of  a  fictitious  person,  if  issued  by  the  maker  for  a  valid 
consideration,  without  indorsement,  lias  the  same  effect 
against  him  and  all  other  persons  having  notice  of  the 
facts  as  if  payable  to  the  bearer.     En.  March  21,  1872. 

Cal.Rep.Cit.   54,   110. 

Fictitious  payee:    See  next  section. 
Payee  generally:     See  ante,  sec.  3089. 

§  3103.  Fictitious  payee.  A  negotiable  instrument, 
made  payable  to  the  order  of  a  person  obviously  fictitious, 
is  payable  to  the  bearer.    En.  March  21,  1872. 

§  3104.  Presumption  of  consideration.  The  signature 
of  every  drawer,  acceptor,  and  indorser  of  a  negotiable 
instrument  is  presumed  to  have  been  made  for  a  valuable 
consideration,  before  the  maturity  of  the  instrument,  and 
in  the  ordinary  course  of  business.     En.  March  21,  1872. 

Cal.Rep.Cit.   64,  413;   64,  415;   106,  655. 

ARTICLE    III. 

INDORSEMENT. 

§  3108.  Indorsement,   what. 

§  3109.  Agreement  to  indorse. 

I  3110.  When  may  be  made  on  separate  paper. 

§  3111.  Kinds  of   indorsement. 

I  3112.  General   indorsement,  what. 

I  3113.  Special   indorsement,   what. 

§  3114.  General   indorsement,   how  made  special. 

§  3115.  Destruction   of   negotiability   by   indorser. 

§  3116.  Implied   warranty   of   indorser. 

§  3117.  Indorser,   when   liable  to  payee. 

§  3118.  Indorsement  without  recourse. 

§   3119.  Same. 

§  3120.  Indorsee  privy  to  contract. 

§  3121.  Rights  of  accommodation   indorser.      (Repealed.) 

§   3122.  Effect  of  want  of  consideration. 

§   3123.  Indorsee  in  due  course,  what. 

§   3124.  Rights  of  indorsee  in  due  course. 

§  3125.  Instrument  left  blank. 

§  3108.  Indorsement,  what.  One  who  writes  his  name 
npon  a  negotiable  instrument,  otherwise  than  as  a  maker 


591  NEGOTIABLE    INSTRUMENTS.  §§  3109-3116 

or  acceptor,  and  delivers  it  with  his  name  thereon,  to 
another  person,  is  called  an  indorser,  and  his  act  is  called 
indorsement.    En.  March  21,  1872. 

Cal.Rep.Cit.     56,445;      62,487;     77,478;      87,617;     94,104; 
•106,  211;   123,  217. 

Indorser  before  delivery:    See  sec.  3117. 

§  3109.  Agreement  to  indorse.  One  who  agrees  to  in- 
dorse a  negotiable  instrument  is  bound  to  write  his  signa- 
ture upon  the  back  of  the  instrument,  if  there  is  sufficient 
space  thereon  for  that  purpose.     En.  March  21,  1872. 

Cal.Rep.Cit.   87,   617. 

§3110.  When  may  be  made  on  separate  paper.  When 
there  is  not  room  for  a  signature  upon  the  back  of  a 
negotiable  instrument,  a  signature  equivalent  to  an  indorse- 
ment thereof  may  be  made  upon  a  paper  annexed  thereto. 
En.  March  21,  1872. 

Cal.Rep.Cit.  87,  617  ;   126,  110. 

§3111.  Kinds  of  indorsement.  An  indorsement  may  be 
general  or  special.    En.  March  21,  1872. 

§3112.  General  indorsement,  wiiat.  A  general  indorse- 
ment is  one  by  which  no  indorsee  is  named.  En.  March  21, 
1872. 

§3113.  Special  Indorsement,  what.  A  special  indorse- 
ment specifies  the  indorsee.    En.  March  21,  1872. 

§3114.     General     indorsement,     how     made     special.      A 

negotiable  instrument  bearing  a  general  indorsement 
cannot  be  afterward  specially  indorsed;  but  any  lawful 
holder  may  turn  a  general  indorsement  into  a  special  one, 
by  writing  above  it  a  direction  for  payment  to  a.particular 
person.    En.  March  21,  1872. 

§3115.  Destruction  of  negotiability  by  indorser.  A 
special  indorsement  may,  by  express  words  for  that  pur- 
pose, but  not  otherwise,  be  so  made  as  to  render  the 
instrument  not  negotiable.     En.  March  21,  1872. 

§3116.     Implied    warranty   of    indorser.  Every   indorser 

of    a    negotiable    instrument,    unless    his  indorsement    is 

qualified,  warrants  to  every  subsequent  holder  thereof, 
who  is  not  liable  thereon  to  him: 


5§  3117,  3118  NEGOTIABLE    INSTRUMENTS.  692 

1.  That  it  is  in  all  respects  what  it  purports  to  be. 

2.  That  he  has  a  good  title  to  it. 

3.  That  the  signatures  of  all  prior  parties  are  binding 
upon  them. 

4.  That   if  the   Instrument   is   dishonored,   the   indorser 

will,   upon  notice  thereof  duly  given  to  him,   or  without 

notice,   where  it  is   excused   by  law,   pay  the   same  with 

interest,  unless  exonerated  under  the  provisions  of  sections 

thirty-one  hundred  and  eighty-nine,  thirty-two  hundred  and 

thirteen,  thirty-two  hundred  and  forty-eight,  or  thirty-two 

hundred  and  fifty-five.     Eh.  March  21,  1872.     Am'd.  1873-4, 

263. 

Cal.Rep.Cit.      56,  445;      81.  510;   103,  324.       Subd.   1—132,  482. 
Subd.   4—134,  242. 

Between  the  engagements  of  maker  and  acceptor  and  of 
drawer  and  indorser  this  distinction  exists,  that  the  con- 
tract of  the  maker  and  acceptor  is  absolute  to  pay  at 
maturity,  and  no  presentment  is  necessary  to  charge  them: 
Post,  sec.  3130;  while  the  contract  of  the  drawer  and  in- 
dorser is  conditional,  being  contingent  upon  the  true  pre- 
sentment at  matui'ity,  and  due  notice  in  case  it  is  not  paid: 
Post,  sees.  3141-3151;  unless  a  suificient  cause  intervene 
excusing  the  holder  from  the  performance  of  this  duty: 
Post.  sees.  3155-3160. 

Want  or  failure  of  consideration:  See  post,  sec.  3122 
and  note. 

Acceptance  of  bill  of  exchange  admits  genuineness  of 
drawer's  signature:    See   post,  sec.  3199. 

Drawer  of  bill  of  exchange  on  acceptance  has  rights  of 
a  first  indorser:     See  post,  sec.  3177. 

§3117.  Ihdorser,  when  liable  to  payee.  One  who  in- 
dorses a  negotiable  instrument  before  it  is  delivered  to 
the  payee  is  liable  to  the  payee  thereon,  as  an  indorser. 
En.  March  21,  1872. 

Cal.Rep.Cit.      62,487;      77,478;      87,617;      94,  104 ;   120,  689 ; 
120,  690;    120,  691;    132,  482;   133,  576. 

Indorser  defined:    Sec.  3108. 

§3118.  Indorsement,  without  recourse.  An  indorser 
may  qualify  his  indorsement  with  the  words,  "without 
recourse,"   or   equivalent  words;    and   upon   such  indorse 


B93  NEGOTIABLE    INSTRUMENTS.  §§  3119-3124 

ment,  he  is  responsible  only  to  the  same  extent  as  in  the 
case  of  a  transfer  without  indorsement.  En.  March  21, 
1872. 

§3119.  Same.  Except  as  otherwise  prescribed  by  the 
last  section,  an  indorsement,  without  recourse,  has  the 
same  effect  as  any  other  indorsement.    En.  March  21,  1872. 

§  3120.  Indorsee  privy  to  contract.  An  indorsee  of  a 
negotiable  instrument  has  the  same  rights  against  every 
prior  party  thereto  that  he  would  have  had  if  the  contract 
had  been  made  directly  between  them  in  the  first  instance. 
En.  March  21,  1872. 

Collateral  security,  etc.:    Ante,  sec.  2936. 

§3121.  Rights  of  accommodation  indorser.  (Repealed). 
En.  March  21,  1872.     Rep.  1873-4,  263. 

§3122.  Effect  of  want  of  consideration.-  The  want  of 
consideration  for  the  undertaking  of  a  maker,  acceptor, 
or  indorser,  of  a  negotiable  instrument  does  not  exonerate 
him  from  liability  thereon  to  an  indorsee  in  good  faith  for 
a  consideration.     En.  March  21,  1872. 

Cal.Rep.Cit.   64,  413;   S3,  175;   106,  655. 

Writing  imports  consideration:    Sec.  1614. 

§  3123.  Indorsee  in  due  course,  what.  An  indorsee  in 
due  course  is  one  who,  in  good  faith,  in  the  ordinary  course 
of  business,  and  for  value,  before  its  apparent  maturity  or 
presumptive  dishonor,  and  without  knowledge  of  its  actual 
dishonor,  acquires  a  negotiable  instrument  duly  indorsed 
to  him,  or  indorsed  generally,  or  payable  to  the  bearer. 
En.  March  21,  1872. 

Cal.Rep.Cit.  68,  548;   69,  144;   83,  175;   106,  655;   128,  320. 

Presumptive  dishonor:    See  sec.  3133. 

Checks  are  an  exception  to  the  rule  of  "after  maturity": 
Sec.  3255,  subd.  2. 

§  3124.  Rights  of  indorsee  in  due  course.  An  indorsee 
of  a  negotiable  instrument,  in  due  course,  acquires  an 
absolute  title  thereto,  so  that  it  is  valid  in  his  hands, 
notwithstanding  any  provision  of  law  making  it  generally 
void  or  voidable,  and  notwithstanding  any  defect   in   the 


§§  3125-3131  NEGOTIABLE     INSTRUMENTS.  594 

title  of  the  person  from  whom  he  acquired  it.  En.  March 
21,  1872. 

Cal.Rep.Clt.   69.  144;   106,  655;   128.  320. 

Assignment,  effect  <y\  defense:  See  Code  Civ.  Proc,  sec. 
368. 

Non-negotiable  instruments,  assignments  of:  Ante,  sec. 
1459. 

§  3125.  Instrument  left  blank.  One  who  makes  himself 
a  party  to  an  Instrument  intended  to  be  negotiable,  but 
which  is  left  wholly  or  partly  in  blank,  for  the  purpose  of 
filling  afterwards,  is  liable  upon  the  instrument  to  an 
indorsee  thereof  in  due  course,  in  whatever  manner  and 
at  whatever  time  it  may  be  filled,  so  long  as  it  remains 
negotiable  in  form.    En.  March  21,  1872. 

ARTICLE    IV. 

PRESENTMENT    FOR    PAYMENT. 

§  3130.  Effect  of  want  of  demand  on  principal  debtor. 

§   3131.  Presentment,    how  made. 

§  3132.  Apparent  maturity,  when. 

§  3133.  Presumptive  dishonor  of  bill,   payable   after  sight. 

§   3134.  Apparent  maturity  of  bill,   payable  at  sight. 

§   3135.  Apparent  maturity  of  note. 

§   3136.  Same. 

§  3137.  Surrender  of  instrument,  when  a  condition  of  payment. 

§  3130.  Effect  of  want  of  demand  on  principal  debtor. 
It  is  not  necessary  to  make  a  demand  of  payment  upon  the 
principal  debtor  in  a  negotiable  instrument  in  order  to 
charge  him;  but  if  the  instrument  is  by  its  terms  payable 
at  a  specified  place,  and  he  is  able  and  willing  to  pay  it 
there  at  maturity,  such  ability  and  willingness  are  equiva- 
lent to  an  order  of  payment  upon  his  part.  En.  March  21, 
1872. 

Cal.Rep.Cit.   79,  229;   82,  33;   131,  191. 

Presentment  of  bill  of  exchange  for  acceptance:  Post, 
sees.  3185  et  seq. 

Presentment  of  bill  of  exchange  for  payment:  Post,  sees. 
3211  et  seq. 

Presentment  in  case  of  acceptance  for  honor:  Post,  sees. 
3206,  3207. 

§  3131.  Presentment,  how  made.  Presentment  of  a 
negotiable  instrument  for  payment,  when  necessary,  must 


59-5  NEGOTIABLE    INSTRUMENTS.  5  3132 

be  made  as  follows,  as  nearly  as  by  reasonable  diligence 
it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder. 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made;  and  if  not,  then  it  must  be  presented  to 
some  other  person  having  charge  thereof,  or  employed 
therein,  if  one  can  be  found  there. 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there;  and  if  the  place  specified  includes 
more  than  one  house,  then  at  the  place  of  residence  or 
business  of  the  principal  debtor,  if  it  can  be  found  therein. 

4.  An  instrument  which  does  not  specify  a  place  for  its 
payment  must  be  presented  at  the  place  of  residence  or 
business  of  the  principal  debtor,  or  wherever  he  may  be 
found,  at  the  option  of  the  presentor;  and, 

5.  The  instrument  must  be  presented  upon  the  day  of 
its  maturity,  or,  if  it  be  payable  on  demand,  it  may  be 
presented  upon  any  day.  It  must  be  presented  within 
reasonable  hours;  and,  if  it  be  payable  at  a  banking-house, 
within  the  usual  banking  hours  of  the  vicinity,  but,  by  the 
consent  of  the  person  to  whom  it  should  be  presented,  it 
may  be  presented  at  any  hour  of  the  day. 

6.  If  the  principal  debtor  have  no  place  of  business,  or 
if  his  place  of  business  or  residence  cannot,  with  reason- 
able diligence,  be  ascertained,  presentment  for  payment  is 
excused.     En.  March  21,  1872.     Am'd.  1873-4,  263. 

Cal.Rep.Cit.      64,413;      64,422;      79,229;      82,     33;      82,     34. 
Subd.   5—107,  285. 

See  sec.  3132,  infra. 

Payable  on  demand:    See  sees.  3134,  3135,  infra. 

Presentment  of  bills  of  exchange  for  acceptance:  See 
post,  sees.  3185  et  seq. 

Presentment  of  bills  of  exchange  for  payment:  See 
post,  sees.  3211  et  seq. 

Bills  of  exchange,  where  payable:     See  post,  sec.  3176. 

Reasonable  diligence:    Post,  sec.  3158. 

§  3132.  Apparent  maturity,  when.  The  apparent  ma- 
turity of  a  negotiable  instrument,  payable  at  a  particular 
time,  is  the  day  on  which,  by  its  terms,  it  becomes  due. 


§§  3133-313C  NEGOTIABLE    INSTRUMENTS.  696 

or  when  that  is  a  holiday,  the  next  business  day.  En. 
March  21,  1S72. 

Cal.Rep.Cit.   64,  412;   69,  144. 

Apparent  maturity:     See  post,  sees.  3134,  3135. 

§  3133.     Presumptive  dishonor  of  bill,  payable  after  sight. 

A  bill  of  exchange,  payable  at  a  certain  time  after  sight, 
which  is  not  accepted  within  ten  days  after  its  date,  in 
addition  to  the  time  which  would  suffice,  with  ordinary 
diligence,  to  forward  it  for  acceptance,  is  presumed  to 
have  been  dishonored.     En.  March  21,  1872. 

§3134.  Apparent  maturity  of  bill,  payable  at  sight.  The 
apparent  maturity  of  a  bill  of  exchange  payable  at  sight 
or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  ten  days  after  its  date, 
in  addition  to  the  time  which  would  suffice,  with  ordinary 
diligence  to  forward  it  for  acceptance.    En.  March  21,  1872. 

Cal.Rep.Cit.   68,   548. 

Mere  delay  in  presentment  does  not  exonerate:  Post, 
sec.  3214.  Presentment  not  made  wi'nin  the  time,  and  not 
excused,  exonerates  drawer  and  indorsers:  Post,  sec.  3213. 
Rule  modified  in  case  of  checks:  Post,  sec.  3255. 

§  3135.  Apparent  maturity  of  note'.  The  apparent  ma- 
turity of  a  promissory  note  payable  at  sight  or  on  demand, 
is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  months  after  its  date. 
En.  March  21,  1872. 

Cal.Rep.Cit.   74,  363;   74,  364;    79,  229;    82,  34;   98,  326. 

Section  3214,  post,  applies  also  to  promissory  notes:  See 
post,  sec.  3247. 

Presentment  not  made  within  the  time,  and  not  excused, 
exonerates  the  indorsers:     Post,  sec.  3248. 

§3136.  Same.  Where  a  promissory  note  is  payable  at 
a  certain  time  after  sight  or  demand,  such  time  is  to  be 
added  to  the  periods  mentioned  in  the  last  section.  En. 
March  21,  1872. 


B97  NEGOTIABLE    INSTRUMENTS.  §§  3137-3142 

§  3137.  Surrender  of  instrument,  when  a  condition  of 
payment.  A  party  to  a  negotiable  instrument  may  require, 
as  a  condition  concurrent  to  its  payment  by  him: 

1.  That  the  instrument  be  surrendered  to  him,  unless 
it  is  lost  or  destroyed,  or  the  holder  has  other  claims  upon 
it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and 
does  retain  it,  then  that  a  receipt  for  the  amount  paid,  or 
an  exoneration  of  the  party  paying,  be  written  thereon;  or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the 
holder  give  to  him  a  bond,  executed  by  himself  and  two 
sufficient  sureties,  to  indemnify  him  against  any  lawful 
claim  thereon.    En.  March  21,  1872. 

Cal.Rep.Uit.   82.   557. 

ARTICLE    V. 

DISHONOR    OP    NEGOTIABLE    INSTRUMENTS. 

§  3141.  f)ishonor,   what. 

§   3142.  Notice,  by  wlioin  given. 

§  3143.  Form  of  notice. 

§  3144.  Notice,  how  served. 

§  3145.  Notice,  how  served  after  indorser's  death. 

§   3146.  Notice  given   in   ignorance  of  death,   valid. 

I  3147.  Notice,  when  to  be  given. 

§  3148.  Notice  of  dishonor,   when  to  be  mailed. 

I  3149.  Notice,   how   given   by   agent. 

I  3150.  Additional  time  for  notice  by  indorser. 

§  3151.  Effect  of  notice  of  dishonor. 

§  3141.  Disinonor,  what.  A  negotiable  instrument  is 
dishonored,  when  it  is  either  not  paid,  or  not  accepted, 
according  to  its  tenor,  on  presentment  for  the  purpose,  or 
without  presentment,  where  that  is  excused.  En.  March 
21,  1872. 

Presentment  for  acceptance:    See  post,  sec.  3186. 

Dishonor  of  bill  by  nonacceptance:  Post,  sees.  3187,  3188, 
3194. 

Damages  allowed  on  dishonor  of  foreign  bills  of  ex- 
change:   See,  post,  sees.  3234-3238. 

§  3142.  Notice,  by  whom  given.  Notice  of  the  dishonor 
of  a  negotiable  instrument  may  be  given: 

1.  By  a  holder  thereof;  or, 

2.  By  any  party  to  the  instrument  who  might  be  com- 
pelled to  pay  it  to  the  holder,  and  who  would,  upon  taking 


§§3143-3145  NEGOTIABLE    INSTRUMENTS.  598 

it  up,  have  a  right  to  reimbursement  from  the  party  to 
whom  the  notice  is  given.     En.  March  21,  1872. 
Cal.Rep.Clt.   55,   407. 

Protest  of  bill  of  exchange:     See  post,  sec.  3225. 
Notice  of  protest:     See  post,  sec.  3231. 
Notice  of  dishonor  to  acceptor  for  honor:  See  sees.  3206, 
3207. 

§  3143.  Form  of  notice.  A  notice  of  dishonor  may  bo 
given  in  any  form  which  describes  the  instrument  with 
reasonable  certainty,  and  substantially  informs  the  party 
receiving  it  that  the  instrument  has  been  dishonored.  En. 
March  21,  1872. 

Cal.Rep.Cit.   55,  407;   57,  330. 

Notice  of  dishonor  of  foreign  bills  of  exchange:  Sec.  3225. 

§  3144.  Notice,  iiow  served.  A  notice  of  dishonor  may 
be  given: 

1.  By  delivering  it  to  the  party  to  be  charged,  personally 
at  any  place;  or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the 
place  of  residence  or  business  of  such  party,  apparently 
acting  for  him;  or, 

3.  By  properly  folding  the  notice,  directing  it  to  the 
party  to  be  charged,  at  his  place  of  residence,  according 
to  the  best  information  that  the  person  giving  the  notice 
can  obtain,  depositing  it  in  the  postoffice  most  conveniently 
accessible  from  the  place  where  the  presentment  was  made, 
and  paying  the  postage  thereon.     En.  March  21,  1872. 

Cal.Rep.Cit.   57,  330;    62,  262;    63,  368;    86,  456. 

Notary's  protest  as  evidence:     See  Pol.  Code,  sec.  795. 
Foreign  bills  of  exchange,  notice  of  dishonor,  how  given: 
See  post,  sec.  3231. 

§  3145.  Notice,  how  served  after  indorser's  death.  In 
case  of  the  death  of  a  party  to  whom  notice  of  dishonor 
should  otherwise  be  given,  the  notice  must  be  given  to 
one  of  his  personal  representatives;  or,  if  there  are  none, 
then  to  any  member  of  his  family  who  resided  with  him 
at  his  death;  or,  if  there  is  none,  then  it  must  be  mailed 
to  his  last  place  of  residence,  as  prescribed  by  subdivision 
3  of  the  last  section.    En.  March  21,  1872. 

»-'Rep.Cit.  99,  144. 


'S99  NEGOTIABLE     INSTRUMENTS.  §§  3146-3151 

§3146.  Notice  given  in  ignorance  of  deatli,  valid.  A 
notice  of  dishonor  sent  to  a  party  after  liis  death,  but  in 
ignorance  thereof,  and  in  good  faith,  is  valid.  En.  March 
21,  1872. 

§  3147*  Notice,  when  to  be  given.  Notice  of  dishonor, 
when  given  by  the  holder  of  an  instrument  or  his  agent, 
otherwise  than  by  mail,  must  be  given  on  the  day  of 
dishonor,  or  on  the  next  business  day  thereafter.  En. 
March  21,  1872. 

§  3148.  Notice  of  disinonor,  wlien  to  be  mailed.  When 
notice  of  dishonor  is  given  by  mail,  it  must  be  deposited 
in  the  postoffice  in  time  for  the  first  mail  which  closes 
after  noon  of  the  first  business  day  succeeding  the  dis- 
honor, and  which  leaves  the  place  where  the  instrument 
was  dishonored,  for  the  place  to  which  the  notice  should 
be  sent.    En.  March  21,  1872. 

§  3149.  Notice,  how  given  by  agent.  When  the  holder 
of  a  negotiable  instrument,  at  the  time  of  its  dishonor,  is 
a  mere  agent  for  the  owner,  it  is  sufficient  for  him  to  give 
notice  to  his  principal  in  the  same  manner  as  to  an  in- 
dorser,  and  his  principal  may  give  notice  to  any  other 
party  to  be  charged,  as  if  he  were  himself  an  indorser. 
And  if  an  agent  of  the  owner  employs  a  subagent,  it  is 
suflBcient  for  each  successive  agent  or  subagent  to  give 
notice  in  like  manner  to  his  own  principal.  En.  March  21, 
1872. 

§  3150.  Additional  time  fc-r  notice  by  indorser.  Every 
party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice 
to  prior  parties  as  the  original  holder  had  after  its  dis- 
honor. But  this  additional  time  is  available  only  to  the 
particular  party  entitled  thereto.     En.  March  21,  1872. 

§  3151.  Effect  of  notice  of  dishonor.  A  notice  of  the  dis- 
honor of  a  negotiable  instrument,  if  valid  in  favor  of  the 
party  giving  it,  enures  to  the  benefit  of  all  other  parties 
thereto  whose  right  to  give  the  like  notice  has  not  then 
been  lost.    En.  March  21,  1872. 


8§3155i5157  NEGOTIABLE    INSTRUMENTS.  600 

ARTICLE    VI. 

EXCUSE    OP    PRESENTMENT    AND    NOTICE. 

§  3155.  Notice  of  dishonor,  when  excused. 

§  3156.  Presentment  and  notice,  when  excused. 

§  3157.  Same. 

§  3158.  Delay,  when   excused. 

§  3159.  Waiver  of  presentment  and  notice. 

I  31t)0.  Waiver  of  protest. 

§  3155.  Notice  of  dishonor,  when  excused.  Notice  of 
dishonor  is  excused: 

1.  Wlien  the  party  by  whom  it  should  be  given  cannot, 
with  reasonable  diligence,  ascertain  either  the  place  of 
residence  or  business  of  the  party  to  be  charged;   or, 

2.  When  there  is  no  postoffice  communication  between 
the  town  of  the  party  by  whom  the  notice  should  be  given 
and  the  town  in  which  the  place  of  residence  or  business 
of  the  party  to  be  charged  is  situated;  or, 

3.  When  the  party  to  be  charged  is  the  same  person  who 
dishonors  the  instrument;  or, 

4.  W^hen  the  notice  is  waived  by  the  party  entitled 
thereto.    En.  March  21,  1872. 

Cal.Rep.Cit.   86,   457. 

Waiver  of  notice:     See  post,  sec.  3159. 

Subd.  1.  Reasonable  diligence:  See  ante,  sec.  3131, 
subd.  6,  wherein  presentment  is  excused  for  the  same 
reason. 

Subd.  2.  Notice  by  mail. — It  is  generally  held  that  the 
notice  should  be  addressed  to  the  postoffice  at  or  nearest 
to  the  party's  residence  or  place  of  business:  See  ante, 
sec.  3144,  subd.  3. 

Waiver  of  protest  of  foreign  bill:    Post,  sec.  3232. 

Excuse  of  presentment  of  bill  of  exchange  and  notice: 
Sec.  3220. 

§  3156.  Presentment  and  notice,  when  excused.  Pre- 
sentment and  notice  are  excused  as  to  any  party  to  a 
negotiable  instrument  who  informs  the  holder,  within  ten 
days  before  its  maturity,  that  it  will  be  dishonored.  En. 
March  21,  1872. 

Cal.Rep.Cit.   64,  460;   101,  482. 

§  3157.  Same.  If,  before  or  after  the  maturity  of  an  in- 
strument, an  indorser  has  received  full   security  for  the 


601  NEGOTIABLE    INSTRUMENTS.  §§  3158-3164 

amount  thereof  or  the  maker  has  assigned  all  his  estate 
to  him  as  such  security,  presentment  and  notice  to  him 
are  excused.    En.  March  21,  1872. 

§  3158.  Delay,  when  excused.  Delay  in  presentment,  or 
in  giving  notice  of  dishonor,  is  excused  when  caused  by 
circumstances  which  the  party  delaying  could  not  have 
avoided  by  the  exercise  of  reasonable  care  and  diligence. 
En.  March  21,  1872. 

Delay  in  presentment  for  acceptance:  See  post,  sec. 
3219. 

Delay  in  presenting  bill  for  payment:  Post,  sees.  3213, 
3214. 

Reasonable  diligence:  See  ante,  sees.  3131,  3155;  post, 
sec.  3213. 

§  3159.  Waiver  of  presentment  and  notice.  A  waiver 
of  presentment  waives  notice  of  dishonor  also,  unless  the 
contrary  is  expressly  stipulated;  but  a  waiver  of  notice 
does  not  waive  presentment.    En.  March  21,  1872. 

§  3160.  Waiver  of  protest.  A  waiver  of  protest  on  any 
negotiable  instrument  other  than  a  foreign  bill  of  exchange 
waives  presentment  and  notice.     En.  March  21,  1872. 

Protest  of  foreign  bills:    See  sees.  3225  et  seq. 


ARTICLE    VII. 

EXTINCTION    OF    NEGOTIABLE    INSTRUMENTS. 

§  3164.      Obligation  of  party,  when  extinguished. 
§  3165.     Revival  of  obligation.      (Repealed.) 

§3164.  Obligation  of  party,  when  extinguished.  The 
obligation  of  a  party  to  a  negotiable  instrument  is  ex- 
tinguished: 

1.  In  like  manner  with  that  of  parties  to  contracts  in 
general;  or, 

2.  By  payment  of  the  amount  due  upon  the  instrument, 
at  or  after  its  maturity,  in  good  faith  and  in  the  ordinary 
course  of  business,  to  any  person  having  actual  possession 
thereof  and  entitled  by  its  terms  to  payment.  En.  March 
21,  1872, 

Civ.   Code— 26 


3165-3174 


BILLS    OF    EXCHANGE. 


602 

See  ante,   sers. 


Extinction   of   obligations   in   general: 
1473  et  seq. 

§3165.     Revival  of  obligation.     (Repealed.)     En.  March 
21.  1S72.     Rep.  1873-4,  2tj4. 


CHAPTER    II. 

BILLS    OP    EXCHANGE. 

Article  I.  Form    and    Interpretation,    §§  3171-3177.' 

II.  Days  of  Grace,   §  31S1. 

III.  Preoentment  for  Acceptance,   §§  3185-3189. 

IV.  Acceptance,    §§  iil93-3iy9. 

V.  Acceptance  or  Payment  for  Honor,  §§  3203-3207. 

VI.  Presentment   for    Payment,    §§  3211-3214. 

VII.  Excuse   of   Presentment   and   Notice,   §5  3218-3220. 

VIII.  Foreign  Bills,   SS  3224-3236. 

ARTICLE    I. 

FORM    AND    INTERPRETATION    OF    A    BILL. 

§  3171.  Bill  of  exchange,  what. 

§   3172.  Drawee,  in  case  of  need. 

§  3173.  Bill  in  parts  of  a  set. 

§  3174.  When  must  be   in   a  set. 

I  3175.  Presentment,  etc.,  of  part  of  set. 

§  3176.  Bill,   where  payable. 

§  3177.  Rights  and  obligations  of  drawer. 

§  3171.  Bill  of  exchange,  what.  A  bill  of  exchange  is  an 
instrument,  negotiable  in  form,  by  wiilch  one,  who  is  called 
the  drawer,  requests  another,  called  the  drawee,  to  pay  a 
specified  sum  of  money.    En.  March  21,  1872. 

§  3172.  Drawee,  in  case  of  need.  A  bill  of  exchange 
may  give  the  name  of  any  person  in  addition  to  the  drawee, 
to  be  resorted  to  in  case  of  need.    En.  March  21,  1872. 

Acceptance  or  payment  for  honor:  See  post,  sees.  3203 
et  seq. 

Presentment  to  drawee  in  case  of  need:    Post,  sec.  3188. 

§  3173.  Bill  In  parts  of  a  set.  A  bill  of  exchange  may 
be  drawn  in  any  number  of  parts,  each  part  stating  the 
existence  of  the  others,  and  all  forming  one  set.  En.  March 
21,  1872. 

Damages  for  nonpayment  of  foreign  bill  drawn  in  parts: 
See  post,  sec.  3234. 

§  3174.  When  must  be  in  a  set.  An  agreement  to  draw 
a  bill  of  exchange  binds  the  drawer  to  execute  it  in  three 


603  BILLS    OF    EXCHANGE.  §§  3175-31S1 

parts,  if  the  other  party  to  the  agreement  desires  it.*    En. 
March  21,  1872. 

§  3175.  Presentment,  etc.,  of  part  of  set.  Presentment, 
acceptance,  or  payment,  of  a  single  part  in  a  set  of  a  bill 
of  exchange,  is  sufficient  for  the  whole.    En.  March  21, 1872. 

Presentment  for  acceptance.     See  post,  sec.  3186. 

Presentment  to  joint  drawees:     See  post,  sec.  3187. 

§3176.  Bill,  where  payable.  A  bill  of  exchange  is  pay- 
able: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable; 
or, 

2.  If  it  specify  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed;  or, 

3.  If  it  be  not  addressed  to  any.  place,  then  at  the  place 
of  residence  or  business  of  the  drawee,  or  wherever  he 
may  be  found.  If  the  drawee  has  no  place  of  business,  or 
if  his  place  of  business  or  residence  [cannot]  with  reason- 
able diligence  be  ascertained,  presentment  for  payment  is 
excused,  and  the  bill  may  be  protested  for  nonpayment. 
En.  March  21,  1872.    Am'd.  1873-4,  264. 

Negotiable  instrument  specifying  place  of  payment:  See 
sees.  3130  et  seq. 

§  3177.  Rights  and  obligations  of  drawer.  The  rights 
and  obligations  of  the  drawer  of  a  bill  of  exchange  are  the 
same  as  those  of  the  first  indorser  of  any  other  negotiable 
instrument.    En.  March  21,  1872. 

Cal.Rep.Cit.   134,   242. 

Rights  of  indorser:  See  ante,  sees.  3108  et  seq.,  3130 
et  seq.,  3141  et  seq. 

Contract  of  Indorser:    Ante,  sec.  3116. 

ARTICLE    II. 

DAYS    OF    GRACE. 
§  3181.    Days  of  grace. 

§  3181.  Days  of  grace.  Days  of  grace  are  not  allowed. 
En.  March  21,  1872. 

Cal.Rep.Cit.  74,  364;  107,  284. 


IS  3185-3187  BILLS    OF    EXCHANGE.     .  604 

ARTICLE    III. 

PRESENTMENT    FOR    ACCEPTANCH. 

§  3185.  When  a  bill  may  be  presented. 

§   3186.  Presentment,   how  made. 

§  3187.  Presentment  to  joint  drawees. 

§  3188.  When  presentment  to  be  made  to  drawee  In  case  of  need. 

§  3189.  Presentment,  when  must  be  made. 

§  3185.  When  a  bill  may  be  presented.  At  any  time 
before  a  bill  of  exchange  is  payable  the  holder  may  present 
it  to  the  drawee  for  acceptance,  and  if  acceptance  is 
refused,  the  bill  is  dishonored.    En.  March  21,  1872. 

Acceptance,  how  made:    Post,  sees.  3193  et  seq. 

Presentment  in  case  of  acceptance  for  honor:  Post,  sees. 
3206,  3207. 

§  3186.  Presentment,  how  made.  Presentment  for  ac- 
ceptance must  be  made  in  the  following  manner,  as  nearly 
as  by  reasonable  diligence  it  is  practicable: 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent. 

2.  It  must  be  presented  on  a  business  day,  and  within 
reasonable  hours. 

3.  It  must  be  presented  to  the  drawee,  or,  if  he  be  absent 
•from  his  place  of  residence  or  business,  to  some  person 
having  charge  thereof,  or  employed  therein;  and, 

4.  The  drawee,  on  such  presentment,  may  postpone  his 
acceptance  or  refusal  until  the  next  day.  If  the  drawee 
have  no  place  of  business,  or  if  his  place  of  business"  or 
residence  cannot,  with  reasonable  diligence,  be  ascer- 
tained, presentment  for  acceptance  is  excused,  and  the  bill 
may  be  protested  for  nonacceptance.  En.  March  21,  1872. 
Am'd.  1873-4,  265. 

Presentment  of  part  of  set:     Ante,  sec.  3175. 

Presentment  for  payment,  generally:  Ante,  sees.  3130 
et  seq. 

Presentment  of  bill  of  exchange  for  payment:  See  post, 
sees.  3211  et  seq. 

§  3187.  Presentment  to  joint  drawees.  Presentment  for 
acceptance  to  one  of  several  joint  drawees,  and  refusal  by 
him,  dispenses  with  presentment  to  the  others.  En.  March 
21,  1872. 


605  BILLS    OV    EXCHANGE.  §§  318S-3195 

§3188.  When  presentment  to  be  made  to  drawee  in  case 
of  need.  A  bill  of  exchange  which  specifies  a  drawee  in 
case  of  need,  must  be  presented  to  him  for  acceptance  or 
payment,  as  the  case  may  be,  before  it  can  be  treated  as 
dishonored.    En.  March  21,  1872. 

Drawee  in  case  of  need :    Ante,  sec.  3172. 

§  3189.  Presentment,  when  must  be  made.  When  a  bill 
of  exchange  is  payable  at  a  specified  time  after  sight,  the 
drawer  and  indorsers  are  exonerated  if  it  is  not  presented 
for  acceptance  within  ten  days  after  the  time  which  would 
suffice,  with  ordinary  diligence,  to  forward  it  for  accept- 
ance, unless  presentment  is  excused.     En.  March  21,  1872. 


ARTICLE    IV. 

ACCEPTANCE. 

§  3193.  Acceptance,  how  made. 

§  3194.  Holder  entitled  to  acceptance  on  face  of  bill. 

§  3195.  "What  acceptance  .sufficient  with  consent  of  holder. 

§  3196.  Acceptance  by  separate  instrument. 

§  3197.  Promise  to  accept,  when  equivalent  to  acceptance. 

§  3198.  Cancellation  of  acceptance. 

§  3199.  What  is  admitted  by  acceptance. 

§  3193.     Acceptance,  how  made.    An  acceptance  of  a  bill 

must  be  made  in  writing,  by  the  drawee  or  by  an  acceptor 
for  honor,  and  may  be  made  by  the  acceptor  writing  his 
name  across  the  face  of  the  bill,  with  or  without  other 
words.  En.  March  21,  1872. 
Acceptance  for  honor:      See  post,  se'c.  3203. 

§3194.     Holder   entitled    to   acceptance   on    face   of   bill. 

The  holder  of  a  bill  of  exchange,  if  entitled  to  an  accept- 
ance thereof,  may  treat  the  bill  as  dishonored  if  the  drawee 
refuses  to  write  across  its  face  an  unqualified  acceptance. 
En.  March  21,  1872. 

Acceptance  on  separate  paper:  See  post,  sees.  3195, 
3196. 

§  3195.  What  acceptance  sufficient  with  consent  of 
holder.  The  holder  of  a  bill  of  exchange  may,  without 
prejudice  to  his  rights  against  prior  parties,  receive  and 
treat  as  a  sufficient  acceptance: 


§§  3196-3199  BILLS    OF    KXCIIANGE.  606 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or 
upon  a  separate  paper; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the 
bill  payable  at  a  particular  place  within  the  city  or  town 
in  which,  if  the  acceptance  was  unqualified,  it  would  be 
payable;  or, 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder 
after  presentment,  in  which  case  the  ■  bill  is  payable  im- 
mediately, without  regard  to  its  terms.  En.  March  21, 
1872. 

Acceptance  on  separate  paper:    See,  also,  next  section. 
Acceptance,  generally:    Ante,  sec.  3193. 

§  3196.  Acceptance  by  separate  instrument.  The  ac- 
ceptance of  a  bill  of  exchange,  by  a  separate  instrument, 
binds  the  acceptor  to  one,  who,  upon  the  faith  thereof,  has 
the  bill  for  value  or  other  good  consideration.     En.  March 

21,  1872. 

§  3197.  Promise  to  accept,  when  equivalent  to  accept- 
ance. An  unconditional  promise,  in  writing,  to  accept  a 
bill  of  exchange,  is  a  sufficient  acceptance  thereof,  in  favor 
of  every  person  who  upon  the  faith  thereof  has  taken  the 
bill  for  value  or  other  good  consideration.  En.  March  21, 
1872. 

Cal.Rep.Cit.   134,  191  ;   134,  193  ;   134,  196. 

§3198.  Cancellation  of  acceptance.  The  acceptor  of  a 
bill  of  exchange  may  cancel  his  acceptance  at  any  time 
before  delivering  the  bill  to  the  holder,  and  before  the 
holder  has,  with  the  consent  of  the  acceptor,  transferred 
his  title  to  another  person  who  has  given  value  for  it  upon 
the  faith  of  such  acceptance.    En.  March  21,  1872. 

Cal.Rep.Cit.  113,   695. 

§3199.  What  is  admitted  by  acceptance.  The  accept- 
ance of  a  bill  of  exchange  admits  the  signature  of  a  drawer, 
but  does  not  admit  the  signature  of  any  indorser  to  be 
genuine.     En.  March  21,  1872.     Am'd.  1873-4,  265. 

Genuineness  of  signature  warranted  by  indorser:  See 
ante,  sec.  3116,  subd.  3. 


607  BILLS    OF    EXCHANGE.  §§  3203-3206 

ARTICLE    V. 
•  ACCEPTANCE     OR    PAYMENT    FOR    HONOR. 

5  3203.     When  bill  may  be  accepted  or  paid  for  honor. 

§  3204.     Holder   of   bill   of   exchange   bound   to    accept   payment   for 

honor. 
§  3205.     Acceptance  for  honor,  how  made. 
§   3206.      How  enforced. 
§  3207.     Notice  of  dishonor  not  excused  by  acceptance  for  honor. 

§3203.     When   bill   may  be  accepted   or  paid   for  honor. 

On  the  dishonor  of  a  bill  of  exchange  by  the  drawee,  and, 
In  case  of  a  foreign  bill,  after  it  has  been  duly  protested, 
it  may  be  accepted  or  paid  by  any  person,  for  the  honor  of 
any  party  thereto.    En.  March  21,  1S72. 

Drawee  in  case  of  need:     See  ante,  sec.  3172. 

Payment  of  foreign  bill  for  honor:    Post,  sec.  3233. 

Acceptor  for  honor  is  in  effect  the  maker  of  a  promissory 
note:    Post,  sec.  3246. 

§3204.  Holder  of  bill  of  exchange  bound  to  accept  pay- 
ment for  honor.  The  holder  of  a  bill  of  exchange  is  not 
bound  to  allow  it  to  be  accepted  for  honor,  but  is  bound 
to  accept  payment  for  honor.    En.  March  21,  1872. 

Acceptance,  how  made:     See  ante,  sees.  3193  et  seq. 

Acceptance  for  honor,  how  made:    Post,  sec.  3205. 

§  3205.  Acceptance  for  honor,  how  made.  An  acceptor 
or  payor  for  honor  must  write  a  memorandum  upon  the 
bill,  stating  therein  for  whose  honor  he  accepts  or  pays, 
and  must  give  notice  to  such  parties,  with  reasonable  dili- 
gence, of  the  fact  of  such  acceptance  or  payment.  Havintx 
done  so,  he  is  entitled  to  reimbursement  from  such  parties, 
and  from  all  parties  prior  to  them.    En.  March  21,  1872. 

Acceptance,  how  made  generally:  See  ante,  sees.  3193 
et  seq. 

Reimbursement. — In  case  of  foreign  bills  of  exchange, 
the  one  who  pays  for  honor  must  declare  in  the  presence 
of  a  person  authorized  to  make  protest  for  whose  honor  he 
pays  the  same:    Post,  sec.  3233. 

§3206.  How  enforced.  A  bill  of  exchange  which  lias 
been  accepted  for  honor  must  be  presented  at  its  maturity 
to  the  drawee  for  payment,  and  notice  of  its  dishonor  by 


ii  3207-3212  BILLS     OF     EXCHANGE.  608 

him  must  be  given  to  the  acceptor  for  honor.  In  like 
manner  as  to  an  indorser;  after  which  the  acceptor  for 
honor  must  pay  the  bill.    En.  March  21,  1872, 

Presentment  for  acceptance:    Ante,  sec.  3186. 

Presentment  of  bill  of  exchange  for  payment:  See  post, 
sees.  3211  et  seq. 

Presentment  of  negotiable  instruments  generally:  Ante, 
sees.  3130  et  seq. 

Notice  of  dishonor  of  foreign  bill:  See  post,  sees.  3225 
et  seq. 

Notice  of  dishonor,  generally:  See  ante,  sees.  3142  et  seq. 

§  3207.  Notice  of  dishonor  not  excused  by  acceptance 
for  honor.  The  acceptance  of  a  bill  of  exchange  for  honor 
does  not  excuse  the  holder  from  giving  notice  of  its  dis- 
honor by  the  drawee.    En.  March  21,  1S72. 

Presentment  of  bill  of  exchange  and  notice,  when  ex- 
cused:   See  post,  sees.  3218-3220 

Excuse  of  presentment  and  notice  generally:  Ante,  sees. 
3155  et  seq. 

Notice  of  dishonor:  See  post,  sec.  3231,  for  the  giving 
notice  of  protest,  and,  ante,  sees.  3142  et  seq.,  for  the 
manner  of  giving  notice  of  dishonor  generally. 

ARTICLE    VI. 

PRESENTMENT    FOR     PAYMENT. 

§  3211.  Presentmeut,  when  bill  not  accepted,  where  made. 

§  3212.  Presentment  of  bill,  payable  at  particular  place. 

§  3213.  Effect  of  delay  in  presentment,  in  certain  cases. 

§  3214.  Effect  in  other  cases. 

§3211.  Presentment,  when  bill  not  accepted,  where 
made.  If  a  bill  of  exchange  is  by  its  terms  payable  at  a 
particular  place,  and  is  not  accepted  on  presentment,  it 
must  be  presented  at  the  same  place  for  payment,  when 
presentment  for  payment  is  necessary.    En.  March  21,  1872. 

Presentment  of  negotiable  instruments  for  payment:  See 
ante,  sees.  3130  et  seq. 

Presentment  for  acceptance:     See  ante,  sees.  3186  et  seq. 

§3212.  Presentment  of  bill,  payable  at  particular  place. 
A  bill  of  exchange,  accepted  payable  at  a  particular  place, 
must  be  presented  at  that  place  for  payment,  when  pre- 


609  BILLS    OF    EXCHANGE.  §§  3213-3219 

sentment  for  payment  is  necessary,  and  need  not  be  pre- 
sented elsewhere.    En.  March  21,  1872. 

Place  of  payment,  presentment  at:  See  ante,  sec.  3131, 
subd.  3. 

§  3213.  Effect  of  delay  in  presentment,  in  certain  cases. 
If  a  bill  of  exchange,  payable  at  sight  or  on  demand,  with- 
out interest,  is  not  duly  presented  for  payment  within  ten 
days  after  the  time  in  which  it  could,  with  reasonable  dili- 
gence, be  transmitted  to  the  proper  place  for  such  present- 
ment, the  drawer  and  indorsers  are  exonerated,  unless  such 
presentment  is  excused.     En.  March  21,  1872. 

See,  generally,  ante,  sees.  2131,  3155. 

Apparent  maturity  of  bill  of  exchange:  See  ante,  sec. 
3134. 

§  3214.  Effect  in  other  cases.  Mere  delay  in  presenting 
a  bill  of  exchange  payable  with  interest,  at  sight  or  on 
demand,  does  not  exonerate  any  party  thereto.  En.  March 
21,  1872. 

Cal.Rep.Cit.   74,   364. 

Delay,  when  excused:  See  ante,  sec.  3158,  and  nost,  sec. 
3219. 

ARTICLE   VII. 
EXCUSE    OF    PRESENTMENT    AND    NOTICE. 

§   3218.      Presentment,  when  excused. 

?   3219.      Delay,  when  excused. 

§   3220.      Presentment  and  notice,  when  excused. 

§  3218.  Presentment,  wlien  excused.  The  presentment 
of  a  bill  of  exchange  for  acceptance  is  excused  if  the 
drawee  has  not  capacity  to  accept  it.    En.  March  21,  1872. 

Excuse  of  presentment  and  notice,  generally:  See  ante, 
sees.  3155  et  seq. 

§  3219.  Delay,  when  excused.  Delay  in  the  presentment 
of  a  bill  of  exchange  for  acceptance  is  excused,  when 
caused  by  circumstances  over  which  the  holder  has  no 
control.     En.  March  21,  1872. 

Delay,  when  excused:     See  ante,  sees.  3158,  3214. 

Delay  in  presentment  of  check:     Post,  sec.  3255. 


15  3220-3226  BIULS    OF    EXCHANGE.  610 

§  3220.  Presentment  and  notice,  when  excused.  Pre- 
sentment of  a  bill  of  exchange  for  acceptance  or  payment, 
and  notice  of  its  dishonor,  are  excused  as  to  the  drawer, 
if  he  forbids  the  drawee  to  accept,  or  the  acceptor  to  pay 
the  bill;  or,  if,  at  the  time  of  drawing,  he  had  no  reason 
to  believe  that  the  drawee  would  accept  or  pay  the  same. 
En.  March  21,  1872. 

Cal.Rep.Cit.  90,   303. 


ARTICLE    VIII. 

FOREIGN    BILLS. 

§  3224.  Definitions. 

§  3225.  Protest  necessary. 

§  3226.  Protest,   by  whom  made. 

§   3227.  Protest,   how  made. 

5  3228.  Protest,  where  made. 

§  3229.  Protest,  when  to  be  made. 

§  3230.  Protest,   when   excused. 

§  3231.  Notice  of  protest,  how  given. 

§  3232.  Waiver  of  protest. 

§  3233.  Declaration  before  payment  for  honor. 

§  3234.  Damages  allowed  on  dishonor  of  foreign  bill. 

§   3235.  Rate  of  damages. 

§  3236,  Interest  on  amount  of  protested  bill. 

§  3237.  Damages,  how  estimated. 

§  3238.  Same. 

§3224.  Definitions.  An  inland  bill  of  exchange  is  one 
drawn  and  payable  within  this  state.  All  others  are  for- 
eign.   En.  March  21,  1872. 

Form  and  interpretation  of  bills  of  exchange:  Ante, 
sees.  3171  et  seq. 

§  3225.  Protest  necessary.  Notice  of  the  dishonor  of  a 
foreign  bill  of  exchange  can  be  given  only  by  notice  of  its 
protest.     En.  March  21,  1872. 

Dishonor  of  negotiable  instruments  generally:  See  ante, 
sees.  3141  et  seq. 

Waiver  of  protest  does  not  waive  presentment  and  no- 
tice in  the  case  of  a  foreign  bill  of  exchange:  Ante,  sec. 
3160. 

§  3226.  Protest,  by  whom  made.  Protest  must  be  made 
by  a  notary  public,  if  with  reasonable  diligence  one  can 
be  obtained;  and  if  not,  then  by  any  reputable  person  in 
the  presence  of  two  witnesses.     En.  March  21,  1872. 


611  BILLS    OF    EXCHANGE.  §§  3227-3232 

§  3227.  Pretest,  how  made.  Protest  must  be  made  by 
an  instrument  in  writing,  giving  a  literal  copy  of  the  bill 
of  exchange,  with  all  that  is  written  thereon,  or  annexing 
the  original;  stating  the  presentment,  and  the  manner  in 
which  it  was  made;  the  presence  or  absence  of  the  drawee 
or  acceptor,  as  the  case  may  be;  the  refusal  to  accept  or 
to  pay,  or  the  inability  of  the  drawee  to  give  a  binding 
acceptance;  and  in  case  of  refusal,  the  reason  assigned, 
if  any;  and,  finally,  protesting  against  all  the  parties  to  be 
charged.     En.  March  21,  1872. 

Protest  of  notary  is  prima  facie  evidence:  See  Pol. 
Code,  sec.  795. 

§  3228.  Protest,  where  made.  A  protest  for  nonaccept- 
ance  must  be  made  in  the  city  or  town  in  which  the  bill 
is  presented  for  acceptance,  and  a  protest  for  nonpayment 
in  the  city  or  town  in  which  it  is  presented  for  payment. 
En.  March  21,  1872. 

§  3229.  Protest,  when  to  be  made.  A  protest  must  be 
noted  on  the  day  of  presentment,  or  on  the  next  business 
day;  but  it  may  be  written  out  at  any  time  thereafter.  En. 
March  21,  1872. 

§  3230.  Protest,  when  excused.  The  want  of  a  protest 
of  a  foreign  bill  of  exchange,  or  delay  in  making  the  same, 
is  excused  in  like  cases  with  the  want  or  delay  of  pre- 
sentment.    En.  March  21,  1872. 

Excuse  of  presentment  and  notice:  Ante,  sees.  3214,  3218 
et  seq. 

§3231.  Notice  of  protest,  how  given.  Notice  of  protest 
must  be  given  in  the  same  manner  as  notice  of  dishonor, 
except  that  it  may  be  given  by  the  notary  who  makes  the 
protest.     En.   March  21,  1872. 

Notice  of  dishonor,  how  given:  See  ante,  sees.  3142 
et  seq. 

§  3232.  Waiver  of  protest.  If  a  foreign  bill  of  exchange 
on  its  face  waives  protest,  notice  of  dishonor  may  be  given 
to  any  party  thereto,  in  like  manner  as  of  an  inland  bill; 
except  that  if  any  indorser  of  such  a  bill  expressly  re- 
quires protest  to  be  made,  by  a  direction  written  on  the 


§§  3233-3236  BILLS    OF    EXCHANGE.  612 

bill  at  or  before  his  indorsement,  protest  must  be  made, 
and  notice  thereof  given  to  him  and  to  all  subsequent  in- 
dorsers.     En.  March  21,  1872. 

Notice  of  dishonor:     See  ante,  sees.  3142  et  seq. 

Waiver  of  notice:      See  ante,  sec.  3155,  subd.  4. 

§  3233.  Declaration  before  payment  for  honor.  One  who 
pays  a  foreign  bill  of  exchange  for  honor  must  declare, 
before  payment,  in  the  presence  of  a  person  authorized 
to  make  protest,  for  whose  honor  he  pays  the  same,  in 
order  to  entitle  him  to  reimbursement.  En.  March  21, 
1872. 

Payment  for  honor:     See  ante,  sec.  3203. 

§  3234.  Damages  allowed  on  dishonor  of  foreign  bill. 
Damages  are  allowed  as  hereinafter  prescribed,  as  a 
full  compensation  for  interest  accrued  before  notice  of 
dishonor,  re-exchange,  expenses,  and  all  other  damages, 
in  favor  of  holders  for  value  only,  upon  bills  of  exchange 
drawn  or  negotiated  within  this  state,  and  protested  for 
nonacceptance  or  nonpayment.     En.  March  21,  1872. 

§  3235.  Rate  of  damages.  Damages  are  allowed  under 
the  last  section  upon  bills  drawn  upon  any  person: 

1.  If  drawn  upon  any  person  in  this  state,  two  dollars 
upon  each  one  hundred  dollars  of  the  principal  sum  speci- 
fied in  the  bill; 

2.  If  drawn  upon  any  person  out  of  this  state,  but  in 
any  of  the  other  states  west  of  the  Rocky  Mountains,  five 
dollars  upon  each  hundred  dollars  of  the  principal  sum 
specified   in  the   bill; 

3.  If  drawn  upon  any  person  in  any  of  the  United  States 
east  of  the  Rocky  Mountains,  ten  dollars  upon  each  hun- 
dred dollars  of  the  principal  sum  specified  in  the  bill; 

4.  If  drawn  upon  any  person  in  any  place  in  a  foreign 
country,  fifteen  dollars  upon  each  hundred  dollars  of  the 
principal  sum  specified  in  the  bill.     En.  March  21,  1872. 

§3236.  Interest  on  amount  of  protested  bill.  From  the 
time  of  notice  of  dishonor  and  demand  of  payment,  lawful 
interest  must  be  allowed  upon  the  aggregate  amount  of  the 
principal  sum  specified  in  the  bill,  and  the  damages  men- 
tioned in  the  preceding  section.     En.  March  21,   1872. 


613  PROMISSORY    NOTES.  §§  3237-3246 

§  3237.  Damages,  hew  estimated.  If  the  amount  of  a 
protested  bill  of  exchange  is  expressed  in  money  of  the 
United  States,  damages  are  estimated  upon  such  amount 
without  regard  to  the  rate  of  exchange.  En.  March  21, 
1872. 

§  3238.  Same.  If  the  amount  of  a  protested  bill  of  ex- 
change is  expressed  in  foreign  money,  damages  are  esti- 
mated upon  the  value  of  a  similar  bill  at  the  time  of 
protest,  in  the  place  nearest  to  the  place  where  tHe  bill 
was  negotiated  and  where  such  bills  are  currently  sold. 
En.  March  21,  1872. 


CHAPTER    III. 
PROMISSORY    NOTES. 

I  3244.  Promissory  note,  what. 

§  3245.  Certain   instruments   promissory   notes. 

§   3246.  Bill  of  exchange,  when   converted   into  a  note. 

I  3247.  Certain  sections  applicable  to  notes. 

g  3248.  Effect  of  delay  in  presentment. 

§  3244.  Promissory  note,  what.  A  promissory  note  is 
an  instrument,  negotiable  in  form,  whereby  the  signer 
promises  to  pay  a  specified  sum  of  money.  En.  March  21, 
1872. 

Cal.Rep.Cit.  103,  324. 

Place  of  payment  not  specified:     See  ante,  sec.  3100. 

Interpretation  of  negotiable  instruments,  generally  See 
ante,  sees.  3099  et  seq. 

§  3245.  Certain  instruments  promissory  notes.  An  in- 
strument in  the  form  of  a  bill  of  exchange,  but  drawn 
upon  and  accepted  by  the  drawer  himself,  is  to  be  deemed 
a  promissory  note.     En.  March  21,  1872. 

Negotiable  instrument  payable  to  order  of  maker:  See 
ante,   sec.   3102. 

§  3246.  Bill  of  exchange,  when  converted  into  a  note. 
A  bill  of  exchange,  if  accepted,  with  the  consent  of  the 
owner,  by  a  person  other  than  the  drawee,  or  an  acceptor 
for  honor,  becomes  in  effect  the  promissory  note  of  such 
person,  and  all  prior  parties  thereto  are  exonerated.  En. 
March  21,  1872. 

Acceptor  for  honor:     Ante,  sees.  3203  et  seq. 


§§  3247-3255  CHECKS.  614 

§3247.  Certain  sections  applicable  to  notes.  Chapter  I 
of  this  title,  and  sections  3181  and  3214  of  this  code,  apply 
to  promissory  notes.     En.  March  21,  1872. 

Cal.Rep.Cit.   74,   364. 

Chapter  I  of  this  title:     See  sees.  3086-3165. 

§  3248.  Effect  of  delay  in  presentment.  If  a  promissory 
note,  payable  on  demand,  or  at  sight,  without  interest,  is 
not  djaly  presented  for  payment  within  six  months  from 
its  date,  the  indorsers  thereof  are  exonerated,  unless  such 
presentment  is  excused.    En.  March  21,  1872. 

Cal.Rep.Cit.   74,   364. 

Apparent  maturity  of  a  promissory  note:  Ante,  sec. 
3135. 

Presentment,  when  excused:  See,  generally,  sees.  3155 
et  seq.,   ante. 


CHAPTER    rV. 

CHECKS. 

§  3254.     Check,  what. 

§  3255.     Rules  applicable  to  checks. 

§  3254.  Check,  what.  A  check  is  a  bill  of  exchange 
drawn  upon  a  bank  or  banker,  or  a  person  described  as 
such  upon  the  face  thereof,  and  payable  on  demand,  with- 
out interest.     En.  March  21,  1872. 

Cal.Rep.Cit.   134,  241;   138,  185. 

§3255.  Rules  applicable  to  checks.  A  check  is  subject 
to  all  the  pi'ovisions  of  this  code  concerning  bills  of  ex- 
change, except  that: 

1.  The  drawer  and  indorsers  are  exonerated  by  delay 
in  presentment,  only  to  the  extent  of  the  injury  which 
they  suffer  thereby; 

2.  An  indorsee,  after  its  apparent  maturity,  but  without 
actual  notice  of  its  dishonor,  acquires  a  title  equal  to  that 
of  an  indorsee  before  such  period.     En.  March  21,  1872. 

Cal.Rep.Cit.   Subd.   1—134,   242. 

Delay  in  presentment  of  bills  of  exchange:  Ante,  sees. 
3214,  3218-3220. 

Indorsee  in  due  course:     Ante,  sec.  3123. 


615  GLXERAL    PROVISIONS.  §§  3261-3268 

CHAPTER   V. 

BANK    NOTES    AND    CERTIFICATES    OF    DEPOSIT. 

§   3261.      Bank  note   negotiable   after  payment. 
§  3262.     Title   acquired   by   indorsee.      (.Repealed.) 

§  3261.  Bank  note  negotiable  after  payment.  A  bank 
note  remains  negotiable,  even  after  it  has  been  paid  by 
the  maker.     En.  March  21,  1872. 

§3262.  Title  acquired  by  indorsee.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  265. 


TITLE    XVI. 

GENERAL    PROVISIONS. 
§  3268.    Parties  may  waive  provisions  of  code. 

§  3268.  Parties  may  waive  previsions  of  code.  Except 
where  It  is  otherwise  declared,  the  provisions  of  the  fore- 
going fifteen  titles  of  this  part,  in  respect  to  the  rights 
and  obligations  of  parties  to  contracts,  are  subordinate  to 
the  intention  of  the  parties,  when  ascertained  in  the  man- 
ner prescribed  by  the  chapter  on  the  Interpretation  of 
Contracts;  and  the  benefit  thereof  may  be  waived  by  any 
party  entitled  thereto,  unless  such  waiver  would  be  against 
public  policy.    En.  March  21,  1872. 

Cal.Rep.CIt.  101,  641. 

Interpretation  of  contracts:    See  ante,  sees.  1635  et  seq. 


DIVISION   FOUKTH. 


Part  I.     Relief,  §§  3274-3423. 

II.     Special    Relations    of    Debtor    and 
Creditor,   §§    3429-3473. 

III.  Nuisance,   §§    3479-3503. 

IV.  Maxims  of  Jurisprudence,  §§  3509- 

3543. 


PART    I. 


I 


RELIEF. 

Title  I.    Relief  In  General,  §§  3274,  3275. 

II.  Compensatory  Relief,  §§  3281-3360. 

III.    Specific  and  Preventive  Relief,  §§  3366-3423. 

TITLE    I. 

RELIEF    IN    GENERAL. 

5  3274.     Species  of  relief. 

i  3275.     Relief  in  case  of  forfeiture. 

§3274.  Species  of  relief.  As  a  general  rule,  compensa- 
tion is  the  relief  or  remedy  provided  by  the  law  of  this 
state  for  the  violation  of  private  rights,  and  the  means  of 
securing  their  observance;  and  specific  and  preventive  re- 
lief may  be  given  in  no  other  cases  than  those  specified 
in  this  part  of  the  Civil  Code.     En,  March  21,  1872. 

Cal.Rep.Cit.  117,  379. 

§3275.  Relief  in  case  of  forfeiture.  Whenever,  by  the 
terms  of  an  obligation,  a  party  thereto  incurs  a  forfeiture, 
or  a  loss  in  the  nature  of  a  forfeiture,  by  reason  of  his 
failure  to  comply  with  its  provisions,  he  may  be  relieved 
therefrom,  upon  making  full  compensation  to  the  other 
party,  except  in  case  of  a  grossly  negligent,  willful,  or 
fraudulent  breach  of  duty.     En.  March  21,  1872. 

Cal.Rep.Cit.  97,  654;  120,  420. 

TITLE    IL 

COMPENSATORY    RELIEF. 

Chapter  I.    Damages  in  General,  §§  3281-3294. 
IL    Measure  of  Damages,  §§  3300-3360. 

CHAPTER    L 
DAMAGES    IN    GENERAL. 

Article  I.     General  Principles,  §§  3281-3283. 

II.      Interest  as  Damages,   §§  3287-3290. 

III.  Exemplary  Damages,  §  3294. 


113281-3287  DAMAGES    IN    GENERAL.  620 

ARTICLE    I. 

GENERAL,    PRINCIPLES. 

S  3281.     Person  suffering  detriment  may  recover  damages. 

§  3282.      Detriment,   what. 

§  3283.      Injuries  resulting  or  probable  after  suit  brought. 

§  3281.  Person  suffering  detriment  may  recover  dam- 
ages. Every  person  who  suffers  detriment  from  the  un- 
lawful act  or  omission  of  another  may  recover  from  the 
person  in  fault  a  compensation  therefor  in  money,  which 
is  called  damages.     En.  March  21,  1872. 

Cal.Rep.Cit.  110,  316;   110,  385;   123,  44;   136,  131. 

Exemplary  damages:  Post,  sec.  3294.  Damages  are 
exclusive  of  exemplary  damages  and  interest  except  where 
those  are  expressly  mentioned:      Post,  sec.  3357 

Damages  must  be  reasonable:     Post,  sec.  3359. 

Damages  for  torts:     Post,  sees.  3333  et  seq. 

Damages  for  breach  of  contract:     Post,  sees.  3300  et  seq. 

§  3282.  Detriment,  what.  Detriment  is  a  loss  or  harm 
suffered  in  person  or  property.     En.  March  21,  1872. 

§  3283.     Injuries  resulting  or  probable  after  suit  brought. 

Damages  may  be  awarded,  in  a  judicial   proceeding,   for 

detriment   resulting  after   the   commencement   thereof   or 

certain  to  result  in  the  future.    En.  March  21,  1872. 

Cal.Rep.Cit.     75.  563;   117,  312;   123,  432;   126.       7;   130,  287; 
136,  130. 

ARTICLE    II 

INTEREST    AS     DAMAGES. 

S  3287.     Person   entitled   to   recover   damages   may   recover    Interest 

thereon. 
§  3288.     In  actions  other  than  contract. 
§  3289.     Limit  of  rate  by  contract. 
S  3290.     Acceptance  of  principal  waives  claim  to  interest. 

§  3287.  Person  entitled  to  recover  damages  may  recover 
Interest  thereon.  Every  person  who  is  entitled  to  recover 
damages  certain,  or  capable  of  being  made  certain  by 
calculation,  and  the  right  to  recover  which  is  vested  in 
him  upon  a  particular  day,  is  entitled  also  to  recover  in- 
terest thereon  from  that  day,  except  during  such  time  as 


621  DAMAGES    IN    GENERAL.  §§  3288-3294 

the  debtor  is  prevented  by  law,  or  by  the  act  of  the  cred- 
itor, from  paying  the  debt.     En.  Msirch  21,  1872. 

Cal.Rep.Cit.  57,  357  ;  63,  374  ;  72,  330  ;  72,  509  ;  89,  635  ; 
103,  162;  106,  234;  106,  447;  106,  572;  106,  573;  110,  316; 
114,  400;   121,  237;   126,     15;   130,  430. 

As  to  what  is  legal  rate:     See  ante,  sec.  1917. 

Interest  in  actions  for  conversion:     Post,  sec.  3336. 

§3288.  In  actions  other  than  contract.  In  an  action 
for  the  breach  of  an  obligation  not  arising  from  contract, 
and  in  every  case  of  oppression,  fraud,  or  malice,  interest 
may  be  given,  in  the  discretion  of  the  jury.  En.  March 
21,  1872. 

Cal.Rep.Cit.   72,  509;   106,  448;   109,  99. 

Interest  in  trover  and  conversion:     Post,  sec.  3336. 

§3289.  Limit  of  rate  by  contract.  Any  legal  rate  of 
interest  stipulated  by  a  contract  remains  chargeable  after 
a  breach  thereof,  as  before,  until  the  contract  is  super- 
seded by  a  verdict  or  other  new  obligation.  En.  March 
21,  1872. 

Cal.Rep.Cit.  136,  371. 

§  3290.  Acceptance  of  principal  waives  claim  to  interest. 
Accepting  payment  of  the  whole  principal,  as  such,  waives 
all  claim  to  interest.     En.  March  21,  1872. 

Cal.Rep.Cit.  100,  22 ;   133,  194. 

ARTICLE    III. 

EXEMPLARY    DAMAGES. 
§  3294.    Exemplary  damages.  In  what  cases  allowed. 

§  3294.     Exemplary  damages,  in  what  cases  allowed.     In 

any  action  for  the  breach  of  an  obligation  not  arising 
from  contract,  where  the  defendant  has  been  guilty  of  op- 
pression, fraud,  or  malice,  actual  or  presumed,  the  jury, 
in  addition  to  the  actual  damages,  may  give  damages  for 
the  sake  of  example,  and  by  way  of  punishing  the  de- 
fendant.    En.  March  21,  1872. 

Cal.Rep.Cit.      68,     32 ; 
77,  312;      80.  137 
101.  413  ;   105,  289  ; 
132,  319;   138,  414. 

Damages  for  wrongs,  generally:  See  post,  sees.  3333 
et  seq. 

Penal  damages:     See  post,  sees.  3344  et  seq. 


74,  150;     75,  566;      76,  534;     77,  212; 

80,138;     85,192;     93,'    71;     97,       6; 

105,  290;   107,  269;   114,  450;   121.  218; 


S§  3300.  3301 


MEASURE    OF    DAMAGES. 


622 


CHAPTER    II. 

MEASURE    OF    DAMAGES. 

Article  I.  Damages  for  Breach  of  Contract,  §§  3300-3319. 

II.  Damages   for   Wrongs,    §§  3333-3341, 

III.  Penal   Damages,   §§  3344-3348. 

IV.  General   Provisions,  '§§  3353-3360. 


ARTICLE    I. 
DAMAGES    FOR    BREACH    OP    CONTRACT. 

§  3300.  Measure  of  damages  for  breach  of  contract. 

§  3301.  Damages  must  be   certain. 

§  3302.  Breach  of  contract  to  pay  liquidated  sum. 

§  3303.  Dishonor  of  foreign  bills  of  exchange. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seisin,  etc., 
what  is. 

§  3305.  Detriment  caused  by  breach  of  covenant  against  incum- 
brances, is  what. 

§   3306.  Breach  of  agreement  to  convey  real  property. 

§   3307.  Breach  of  agreement  to  buy  real  property. 

§   3308.  Breach  of  agreement  to  sell  personal  property  not  paid  for. 

§   3309.  Breach  of  agreement  to  sell  personal  property  paid  for. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property  sold. 

§  3311.  Breach  of  agreement  to  buy  personal  property. 

§   3312.  Breach  of  warranty  of  title  to  personal  property. 

§  3313.  Breach  of  warranty  of  quality  of  personal  property. 

§  3314.  Breach  of  warranty  of  quality  for  special  purpose. 

§   3315.  Breach  of  carrier's  obligation  to  receive  goods,  etc. 

§  3316.  Breach  of  carrier's  obligation  tp  deliver. 

§  3317.  Carrier's   delay. 

§  3318.  Breach  of  warranty  of  authority. 

§  3319.  Breach  of  promise  of  marriage. 

§  3300.     Measure    of    damages    for    breach    of    contract. 

For  the  breach  of  an  obligation  arising  from  contract,  the 
measure  of  damages,  except  where  otherwise  expressly 
provided  by  this  code,  is  the  amount  which  will  compen- 
sate the  party  aggrieved  for  all  the  detriment  proximately 
caused  thereby,  or  which  in  the  ordinary  course  of  things 
would  be  likely  to  result  therefrom.  Eln.  March  21,  1872. 
Am'd.    1873-4,    265. 

Cal.Rep.Cit.     67,408;      67,466;     89,466;     97,493;      98,214; 
100,     97;   102,     68;   103,  458;   116,  244. 

Damages  for  revoking  submission  to  arbitration:  See 
sec.  1290,  Code  Civ.  Proc. 

§  3301.  Damages  must  be  certain.  No  damages  can  be 
recovered  for  a  breach  of  contract  which  are  not  clearly 
ascertainable  in  both  their  nature  and  origin.  En.  March 
21,  1872. 

Cal.Rep.Cit.   66,  538;   101,  280. 


623  MEASURE    OF    DAMAGES.  §§  3302-3306 

§3302.  Breach  of  contract  to  pay  liquidated  sum.  The 
detriment  caused  by  the  breach  of  an  obligation  to  pay 
money  only,  is  deemed  to  be  the  amount  due  by  the  terms 
of  the  obligation,  with  interest  thereon.  En.  March  21, 
1872. 

Cal.Rep.Cit.  76,  623;   79,  223;   89,  466;   107,  585. 

§3303.     Dishonor  of  foreign  bills  of  exchange.     For  the 

dishonor  of  foreign  bills  of  exchange  the  damages  are  pre- 
scribed by  sections  3235,  3237,  and  3238.  En.  March  21, 
1872. 

§  3304.  Detriment  caused  by  breach  of  covenant  of 
seisin,  etc.,  what  is.  The  detriment  caused  by  the  breach 
of  a  covenant  of  "seisin,"  of  "right  to  convey,'  of  "war- 
ranty," or  of  "quiet  enjoyment,"  in  a  grant  of  an  estate  in 
real  property,  is  deemed  to  be: 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is 
partial  only,  such  proportion  of  the  price  as  the  value  of 
the  property  affected  by  the  breach  bore  at  the  time  of 
the  grant  to  the  value  of  the  whole  property; 

2.  Interest  thereon  for  the  time  during  which  the 
grantee  derived  no  benefit  from  the  property,  not  exceed- 
ing five  years; 

3.  Any  expenses  properly  incurred  by  the  covenantee 
in  defending  his  possession.     En.  March  21,  1872. 

Cal.Rep.Cit.   70,  84;   136,  29. 

§  3305.  Detriment  caused  by  breach  of  covenant  against 
incumbrances,  is  what.  The  detriment  caused  by  the 
breach  of  a  covenant  against  incumbrances,  in  a  grant 
of  an  estate  in  real  property,  is  deemed  to  be  the  amount 
which  has  been  actually  expended  by  the  covenantee  in 
extinguishing  either  the  principal  or  interest  thereof,  not 
exceeding  in  the  former  case  a  proportion  of  the  price 
paid  to  the  grantor  equivalent  to  the  relative  value  at  the 
time  of  the  grant  of  the  property  affected  by  the  breach, 
as  compared  with  the  whole,  or,  in  the  latter  case,  interest 
on  a  like  amount.     En.  March  21,  1872. 

§3306.     Breach    of   agreement   to   convey    real    property. 

The  detriment  caused  by  the  breach  of  an  agreement  to 
convey  an  estate  in  real  property  is  deemed  to  be  the 
price  paid,  and  the  expenses  properly  incurred  in  exam- 


§§3307-3311  MEASURE    OF    DAMAGES.  624 

ining  the  title  and  preparing  the  necessary  papers,  with 
interest  thereon;  but  adding  thereto,  in  case  of  bad  faith, 
the  difference  between  the  price  agreed  to  be  paid  ana  the 
value  of  the  estate  agreed  to  be  conveyed,  at  the  time  of 
the  breach,  and  the  expenses  properly  incurred  in  prepar- 
ing to  enter  upon  the  land.     En.  March  21',  1872. 

Cal.Rep.Cit.      55,     41;      78,535;      81,217;      89,476;   116,517; 
121,     46;   121,  520;   123,       5;   123,     10. 

§  3307.  Breach  of  agreement  to  buy  real  property.  The 
detriment  caused  by  the  breach  of  an  agreement  to  pur- 
chase an  estate  in  real  property  is  deemed  to  be  the  ex- 
cess, if  any,  of  the  amount  which  would  have  been  due 
to  the  seller,  under  the  contract,  over  the  value  of  the 
property  to  him.    En.  March  21,  1872. 

Cal.Rep.Cit.   87,  450;   123,  5;   123,  10;   125,  567;   138,  104. 

§3308.  Breach  of  agreement  to  sell  personal  property 
not  paid  for.  The  detriment  caused  by  the  breach  of  a 
seller's  agreement  to  deliver  personal  property,  the  price 
of  which  has  not  been  fully  paid  in  advance,  is  deemed  to 
be  the  excess,  if  any,  of  the  value  of  the  property  to  the 
buyer,  over  the  amount  which  would  have  been  due  to  the 
seller  under  the  contract,  if  it  had  been  fulfilled.  En. 
March  21,  1872. 

Cal.Rep.Cit.   67,  479. 

§  3309.  Breach  of  agreement  to  sell  personal  property 
paid  for.  The  detriment  caused  by  the  breach  of  a  seller's 
agreement  to  deliver  personal  property,  the  price  of  which 
has  been  fully  paid  to  him  in  advance,  is  deemed  to  be 
the  same  as  in  case  of  wrongful  conversion.  En.  March 
21,  1872. 

Cal.Rep.Cit.   96,   154. 

Conversion,  measure  of  damages  for:      Post,   sec.  3336. 

§  3310.  Breach  of  agreement  to  pay  for  personal  prop- 
erty sold.  The  detriment  caused  by  the  breach  of  a 
buyer's  agreement  to  accept  and  pay  for  personal  prop- 
erty, the  title  of  which  is  vested  in  him,  is  deemed  to  be 
the  contract  price.     En.  March  21,  1872. 

§3311.  Breach  of  agreement  to  buy  personal  property. 
The  detriment  caused  by  the  breach  of  a  buyer's  agree- 


«25  MEASURE     OF     DAMAGES.  §§  3312-3315 

ment  to  accept  and  pay  for  personal   property,   the  title 
to  which  is  not  vested  in  him,  is  deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to  section 
3049,  the  excess,  if  any,  of  the  amount  due  from  the  buyer, 
under  the  contract,  over  the  net  proceeds  of  the  resale;  or, 

2.  If  the  property   has  not  been  resold   in   the  manner 

prescribed    by    section    3049,    the    excess,    if   any,    of    the 

amount  due  from  the  buyer,  under  the  contract,  over  the 

value  to  the  seller,  together  with  the  excess,   if  any,  of 

the  expenses  properly  incurred  in  carrying  the  property 

to  market,   over   those  which   would   have   been   incurred 

for  the  carriage  thereof,  if  the  buyer  had  accepted  it.    En. 

March  21,  1872. 

Cal.Rep.Cit.      77,143;      90,520;      94,     17;    106,447;   106,448; 
120,  420.       Subd.   2—106,  446;   109,  248. 

§  33121  Breach  cf  warranty  of  title  to  personal  property. 
The  detriment  caused  by  the  breach  of  a  warranty  of  the 
title  of  personal  property  sold  is  deemed  to  be  the  value 
thereof  to  the  buyer,  when  he  is  deprived  of  its  possession, 
together  with  any  costs  which  he  has  become  liable  to  pay 
in  an  action  brought  for  the  property  by  the  true  owner. 
En.  March  21,  1872. 

§  3313.  Breach  of  warranty  of  quality  of  personal  prop- 
erty. The  detriment  caused  by  the  breach  of  a  warranty 
of  the  quality  of  personal  property  is  deemed  to  be  the 
excess,  if  any,  of  the  "ra,lue  which  the  property  would  have 
had  at  the  time  to  which  the  warranty  referred,  if  it  had 
been  complied  with,  over  its  actual  value  at  that  time. 
En.  March  21,  1872. 

Cal.Rep.Cit.     60,  287;     75,  562;     78,  610;   103,  417;  103,  418; 
103,  419;    103,  420. 

§  3314.  Breach  of  warranty  of  quality  for  special  pur- 
pose. The  detriment  caused  by  the  breach  of  a  warranty 
of  the  fitness  of  an  article  of  personal  property  for  a 
particular  purpose  is  deemed  to  be  that  which  is  defined 
by  the  last  section,  together  with  a  fair  compensation  for 
the  loss  incurred  by  an  effort  in  good  faith  to  use  it  for 
such  purpose.     En.  March  21,  1872. 

Cal.Rep.Cit.   65,  274;   75,  562;   78,  610. 

§  3315.  Breach  of  carrier's  obligation  to  'receive  goods, 
etc.  The  detriment  caused  by  the  breach  of  a  carrier's 
Civ.  Code— 27 


8S  3316-3319  MEASL'RE     OP     DAMAGES.  626 

obligation  to  accept  freight,  messages,  or  passengers  is 
deemed  to  be  the  difference  between  the  amount  which  he 
had  a  right  to  charge  for  the  carriage  and  the  amount 
which  it  would  be  necessary  to  pay  for  the  same  service 
when  it  ought  to  be  performed.  En.  March  21,  1872. 
Obligation  to  receive  freight:     Sec.   21G9. 

§3316.  Breach  of  carrier's  obligation  to  deliver.  The 
detriment  caused  by  the  breach  of  a  carrier's  obligation  to 
deliver  freight,  where  he  has  not  converted  it  to  his  own 
use,  is  deemed  to  be  the  value  thereof  at  the  place  and  on 
the  day  at  which  it  should  have  been  delivered,  deducting 
the  freightage  to  which  he  would  have  been  entitled  if  he 
had  completed  the  delivery.     En.  March  21,  1872. 

Cal.Rep.Cit.   120,   159. 

Delivery  of  property  by  carrier:  See  ante,  sees.  2118, 
2119. 

Stoppage  in  transitu:    See  ante,  sees.  3076  et  seq. 

§  3317.  Carrier's  delay.  The  detriment  caused  by  a 
(barrier's  delay  in  the  delivery  of  freight  is  deemed  to  be 
the  depreciation  in  the  intrinsic  value  of  the  freight  during 
the  delay,  and  also  the  depreciation,  if  any,  in  the  market 
value  thereof,  otherwise  than  by  reason  of  a  depreciation 
in  its  intrinsic  value,  at  the  place  where  it  ought  to  have 
been  delivered,  and  between  the  day  at  which  it  ought 
to  have  been  delivered  and  the  day  of  its  actual  delivery. 
En.  March  21,  1872.  . 

Carrier's  liability  for  delay:     See  ante,  sec.  2196. 

§  3318.  Breach  of  warranty  of  authority.  The  detriment 
caused  by  the  breach  of  a  warranty  of  an  agent's  authority 
is  deemed  to  be  the  amount  which  could  have  been  re- 
covered and  collected  from  his  principal  if  the  warranty 
had  been  complied  with,  and  the  reasonable  expenses  of 
legal  proceedings  taken,  in  good  faith,  to  enforce  the  act 
of  the  agent  against  his  principal.    En.  March  21,  1872. 

Warranty  of  authority  by  one  assuming  to  act  as  agent: 
See  ante,  sec.  2342, 

§3319.  Breach  of  promise  of  marriage.  The  damages 
for  the  breach  of  a  promise  of  marriage  rest  in  the  sound 
discretion  of  the  jury.    En.  March  21,  1872. 


^27  MEASURE    OF    DAMAGES.  §§  3333-333S 


ARTICLE    II. 
DAMAGES    FOR    WRONGS. 

S  3333.  Breach  of  obligation  other  than  contract. 

§  3334.  Wrongful  occupation  of  real  property. 

§  3335.  Willful  holding  over. 

§  3336.  Conversion  of  personal  property. 

§  3337.  Same. 

I  3338.  Damages  of  lienor. 

§  3339.  Seduction. 

§  3340.  Injuries  to  animals. 

§  3341.  Same. 

§  3333.  Breach  of  obligation  other  than  contract.  For 
the  breach  of  an  obligation  not  arising  from  contract,  the 
measure  of  damages,  except  where  otherwise  expressly 
provided  by  this  code,  is  the  amount  which  will  compensate 
for  all  the  detriment  proximately  caused  thereby,  whether 
it  could  have  been  anticipated  or  not.    En.  March  21,  1872. 

Cal.Rep.Cit.      53,     58;      56,218;      58.242;      58,357;      82,599; 
88,,  163;      88,  164;      92,  174;   109,  106;   111,  683;   114,  451; 
130,  314;   131,  151. 

Negligent  acts  in  relation  to  fire,  treble  damages:  See 
Pol.  Code,  sec.  3344. 

Recorder  liable  for  treble  damages  for  neglect,  mistake 
or  misconduct:     See  Pol.  Code,  sec.  4244. 

Sheriff,  liability  of  for  neglect  or  misconduct:  See  Pol. 
Code,  sees.  4179,  4182-4184. 

§  3334.  Wrongful  occupation  of  real  property.  The 
detriment  caused  by  the  wrongful  occupation  of  real  prop- 
erty, in  cases  not  embraced  in  sections  3335,  3344,  and  3345 
of  this  code,  or  section  1174  of  the  Code  of  Civil  Procedure, 
is  deemed  to  be  the  value  of  the  use  of  the  property  for  the 
time  of  such  occupation,  not  exceeding  five  years  next  pre- 
ceding the  commencement  of  the  action  or  proceeding  to 
enforce  the  right  to  damages,  and  the  costs,  if  any,  of 
recovering  the  possession.     En.  March  21,  1872. 

Cal.Rep.Cit.   72,  330;   77,  472;   125,  566. 

§  3335.  Willful  holding  over.  For  willfully  holding 
over  real  property,  by  a  person  who  entered  upon  the 
same,  as  guardian  or  trustee  for  an  infant,  or  by  right  of 
an  estate  terminable  with  any  life  or  lives,  after  the  ter- 
mination of  the  trust  or  particular  estate,  without  the 
consent    of    the    party    immediately    entitled    after    such 


5§  3336-3339  MEASURE    OF    DAMAGES.  628 

termination,  the  measure  of  damages  is  the  value  of  the 
profits  received  during  such  holding  over.  En.  March  21, 
1872. 

Cal.Rep.Clt.  125,   566. 

Termination  of  trustee's  estate:     Ante,  sec.  871. 

§  3336.  Conversion  of  personal  property.  The  detriment 
caused  by  the  wrongful  conversion  of  personal  property 
is  presumed  to  be: 

1.  The  value  of  the  property  at  the  time  of  the  conver- 
sion, with  the  interest  from  that  time,  or,  where  the  action 
has  been  prosecuted  with  reasonable  diligence,  the  highest 
market  value  of  the  property  at  any  time  between  the  con- 
version and  the  verdict,  without  interest,  at  the  option  of 
the  injured  party;  and, 

2.  A  fair  compensation  for  the  time  and  money  properly 
expended  in  pursuit  of  the  property.  En.  March  Zi,  1872. 
Am'd.  1873-4,  266;  1877-8,  90. 


Cal.Rep.Cit.  50,  115 
54,  194;  54,  195 
71,  69;  76,  70 
86,  461;  86,  462 
96,  154;  112,  214 
136,  541.       Subd.   2—130,  236 

Compare  sec.  3309,  ante. 


53,  278;      53,  279;  53,  280;      54,  146 

57,326;      58,242;  58,243;      61,634 

77,  279;      79,  183;  85,  194;      85.  195 

90,     14;      91,  121;  91,  122;      92,  173 

115,     49;   130,  193;  131,  151;   132,  319 


§  3337.  Same.  The  presumption  declared  by  the  last 
section  can  not  be  repelled,  in  favor  of  one  whose  posses- 
sion was  wrongful  from  the  beginning,  by  his  subsequent 
application  of  the  property  to  the  benefit  of  the  owner, 
without  his  consent.     En.  March  21,  1872. 

§3338.  Damages  of  lienor.  One  having  a  mere  lien  on 
personal  property  cannot  recover  greater  damages  for  its 
conversion,  from  one  having  a  right  thereto  superior  to 
his,  after  his  lien  is  discharged,  than  the  amount  secured 
by  the  lien,  and  the  compensation  allowed  by  section  3336 
for  loss  of  time  and  expenses.     En.  March  21,  1872. 

Cal.Rep.Cit.   71,  70;   71,  71;   91,  122;   126,  290;   128,  226. 

Damage  for  conversion  of  personalty,  generally:  Sec. 
3336. 

Levy  on  mortgaged  chattel:  See,  as  to  duty  of  oflScer, 
ante,  sec.  2969. 

§  3339.  Seduction.  The  damages  for  seduction  rest  in 
the  sound  discretion  of  the  jury.    En.  March  21,  1872. 


629  MEASURE     OF     DAMAGES.  §§  3340.  3341 

Seduction,  action  by  unmarried  female:  Code  Civ.  Proc, 
sec.  374. 

Seduction,  actions  by  parent  or  guardian:  Code  Civ. 
Proc,  sec.  375. 

§3340.  Injuries  to  animals.  For  wrongful  injuries  to 
animals  being  subjects  of  property,  committed  willfully  or 
by  gross  negligence,  in  disregard  of  humanity,  exemplary 
damages  may  be  given.    En.  March  21,  1872. 

Cal.Rep.Cit.   93,   394. 

Dogs    are    property:     Pen.    Code,    sec.    491;    injury    to: 
Pen.  Code,  sec.  597. 
Exemplary  damages,  generally:    See  sec.  3294. 

§  3341.  Same.  The  owner,  possessor,  or  harborer  of  any 
dog  or  other  animal,  that  shall  kill,  worry,  or  wound  any 
sheep,  angora  goat,  or  cashmere  goat,  or  poultry,  shall  be 
liable  to  the  owner  of  the  same  for  the  damages  and  costs 
of  suit,  to  be  recovered  in  any  court  of  competent  juris- 
diction: 

1.  In  the  prosecution  of  actions  under  the  provisions  of 
this  chapter,  it  shall  not  be  necessary  for  the  plaintiff  to 
show  that  the  owner,  possessor,  or  harborer  of  such  dog 
or  other  animal,  had  knowledge  of  the  fact  that  such  dog 
or  other  animal  would  kill,  wound  or  worry  sheep,  goats, 
or  poultry. 

2.  Any  person  on  finding  any  dog  or  dogs.,  or  other 
animal,  not  on  the  premises  of  the  owner  or  possessor  of 
such  dog  or  dogs,  or  other  animal,  worrying,  wounding,  or 
killing  any  sheep,  angora  or  cashmere  goats,  may,  at  the 
time  of  finding  such  dog  or  dogs,  or  other  animal,  kill  the 
same,  and  the  owner  or  owners  thereof  shall  sustain  no 
action  for  damages  against  any  person  so  killing  such  dog 
or  dogs,  or  other  animal.  En.  Stats.  1883,  283.  Am'd. 
1903,  54. 

Cal.Rep.Cit.   Subd.   2—80,  548. 


630 

« 8344-3347  MEASURE    OP    DAMAGES. 

ARTICLE    III. 

PENAL    DAMAGES. 

t  <iq44  Failure  to  quit,  after  notice. 

I  lilt:  Tenant  willfully  holding  over. 

K  ^q4fi  Injuries  to  trees,  etc. 

I  II47.  Injuries  inflicted  in  a  duel. 

BOtlce  of  bis  intention  to  l""  '^^J*  sneclSed  In  the  no- 
deliver  up  the  possession  ^l^l^XeZrent  during  the 
ISe"  Ctin^^Is  m*:sSl  attor  such  notice.     En. 

Marcli  21,  1872. 

Cal.Rep.Cit.  125,   566. 

,  3345.    Tenant  wUlfnily  holding  --    "  -V  'enant^or 
any  person  in  colh-s^™  w,th  t,e  t«ant,^^^  ^^^ 

ri?^,^rCl.rre\^|in.th^e.^^^^^^^^^^^ 
:SdCStre'rercoZta"o-ssion  atter  such 

notice.     En.  Marcli  21,  1872. 

Cal.Rep.Cit.  125,  566.  ,.,,„„-.     gge  Code  Civ.  Proc, 

Damages  for  unlawful  detainer.     See  ^ 

sees.  735,  1174  et  seq.  _ 

.    •     ■  .  +n  trees    etc.     For  wrongful  injuries  to 
§3346.     Injuries  to  *'^®^%^'^^^„  ^^^  land  of  another,  or 
timber,  trees,  or  underwood  upon  the^^and  o  ^.^^^ 

removal  thereof,  the  measure  of  'i^^JJf  ^^,^^,  detriment, 
such  a  sum  as  would  <^°^P^^  f ", '°4f\'nd  nvoluntary,  or 
except  where  the  tf^P^f.^.Y^^.^Xe^^^d  belonged  to  the 
committed  under  the  belief  ^f  ^  ^f  J^^.^^^^y  the  authority 

trespasser,  or  where  tl^f  J^od  wa^,  of  a  M^^^ay;  in  which 
of  highway  officers  for  the  purpose^so  ^^^^^^  ^^^^._ 

cases  the  damages  are  a  sum  equal  ^o 
ment.    En.  March  21,  187Z. 

Cal.Rep.Cit.  108,  207.  rarrvins  away  trees:  See 

Damages  for  cutting  down  and  carrying 

code  Civ.  proc,  sec.  733.  rf'        person  slays 

13347.     injuries  infiicted  ""^  ^^/"/J;  J  ^^a 'duel  in  this 

or  permanently  disables  ^^^^f/^/^^^^^a^ntenance  of  the 

state,  the  slayer  must  provide  for  the  m 


631  MEASURE    OF    DAMAGES.  §§  3348-3354 

widow  or  wife  of  the  person  slain  or  permanently  disabled, 
and  for  tlie  minor  children,  in  such  manner  and  at  such 
cost,  either  by  aggregate  compensation  in  damages  to  each, 
or  by  a  monthly,  quarterly,  or  annual  allowance,  to  be 
determined  by  the  court.    En.  March  21,  1872. 

Duels  and  challenges:     See  Pen.  Code,  sees.  225-232. 

§  3348.  Same.  If  any  person  slays  or  permanently  dis- 
ables another  person  in  a  duel  in  this  state,  the  slayer  is 
liable  for  and  must  pay  all  debts  of  the  person  slain  or 
permanently  disabled.    En.  March  21,  1872. 


ARTICLE    rV. 

GENERAL    PROVISIONS. 

S  3353.  Value,  how  estimated  in  favor  of  seller. 

§  3354.  Value,  how  estimated  in  favor  of  buyer. 

S  3355.  Property  of  peculiar  value. 

§  3356.  Value  of  thing  in  action. 

§  3357.  Damages  allowed  in  this  chapter,  exclusive  of  others. 

I  3358.  Limitation  of  damages. 

§  3359.  Damages  to  be  reasonable. 

§  3360.  Nominal  damages. 

3353.  Value,  how  estimated  in  favor  of  seller.  In 
estimating  damages,  the  value  of  property  to  a  seller 
thereof  is  deemed  to  be  the  price  which  he  could  have 
obtained  therefor  in  the  market  nearest  to  the  place  at 
which  it  should  have  been  accepted  by  the  buyer,  and  at 
such  time  after  the  breach  of  the  contract  as  would  have 
sufficed,  with  reasonable  diligence,  for  the  seller  to  effect 
a  resale.  En.  March  21,  1872, 
Cal.Rep.Cit.  94,  18 ;   106,  446. 

§  3354.  Value,  how  estimated  in  favor  of  buyer.  In 
estimating  damages,  except  as  provided  by  sections  3355 
and  3356,  the  value  of  property,  to  a  buyer  or  owner  thereof, 
deprived  of  its  possession,  is  deemed  to  be  the  price  at 
which  he  might  have  bought  an  equivalent  thing  in  the 
market  nearest  to  the  place  where  the  property  ought  to 
have  been  put  into  his  possession,  and  at  such  time  after 
the  breach  of  duty  upon  which  his  right  to  damages  is 
founded  as  would  suffice,  with  reasonable  diligence,  for  him 
to  make  such  a  purchase.    En.  March  21,  1872. 

Cal.Rep.Cit.   67,  479;   91,  559. 


H  3355-3360  MEASURE    OP    DAMAGES.  632 

§  3355.  Property  of  peculiar  value.  Where  certain  prop- 
erty has  a  peculiar  value  to  a  person  recovering  damages 
for  deprivation  thereof,  or  injury  thereto,  that  may  be 
deemed  to  be  its  value  against  one  who  had  notice  thereof 
before  incurring  a  liability  to  damages  in  respect  thereof, 
or  against  a  willful  wrongdoer.     En.  March  21,  1872. 

§  3356.  Value  of  thing  in  action.  For  the  purpose  of 
estimating  damages,  the  value  of  an  instrument  in  writing 
is  presumed  to  be  equal  to  that  of  the  property  to  which 
it  entitles  its  owner.  En.  March  21,  1872.  Am'd.  1873-4, 
266. 

§3357.  Damages  allowed  in  this  chapter,  exclusive  of 
others.  The  damages  prescribed  by  this  chapter  are  ex- 
clusive of  exemplary  damages  and  interest,  except  where 
those  are  expressly  mentioned.     En.  March  21,  1872. 

Cal.Rep.Cit.   106,   447. 

Exemplary  damages:  Ante,  sec.  3294.  Interest:  Ante. 
sees.  3287-3290. 

§3358.  Limitation  of  damages.  Notwithstanding  the 
provisions  of  this  chapter,  no  person  can  recover  a  greater 
amount  in  damages  for  the  breach  of  an  obligation  than 
he  could  have  gained  by  the  full  performance  thereof  on 
both  sides,  except  in  the  cases  specified  in  the  articles  on 
Exemplary  Damages  and  Penal  Damages,  and  in  sections 
3319,  3339,  and  3340.     En.  March  21,  1872. 

Cal.Rep.Cit.   90,   520. 

Exemplary  damages:    Ante,  sec.  3294. 
Penal  damages:     Ante,  sees.  3344-3348. 

§  3359.  Damages  to  be  reasonable.  Damages  must,  in 
all  cases,  be  reasonable,  and  where  an  obligation  of  any 
kind  appears  to  create  a  right  to  unconscionable  and 
grossly  oppressive  damages,  contrary  to  substantial  justice, 
no  more  than  reasonable  damages  can  be  recovered.  En. 
March  21,  1872. 

Liquidated  damages  and  penalty:  See  ante,  sees.  1670, 
1671. 

§  3360.  Nominal  damages.  When  a  breach  of  duty  has 
caused  no  appreciable  detriment  to  the  party  affected,  he 
may  yet  recover  nominal  damages.     En.  March  21,  1872. 

Cal.Rep.Cit.   123.   431. 


6P  GENERAL    PRINCIPLES.  §§  3366,  3367 

TITLE    III. 

SPECIFIC    AND    PREVENTIVE    RELIEF. 

Chapter  I.     General  Principles,  §§  3366-3369. 
II.     Specific  Relief.   §§   3375-3414. 
III.     Preventive  Relief,  §§  3420-3423. 

CHAPTER    I. 

GENERAL    PRINCIPLES. 

S  3366.  Specific  relief,   etc.,  when  allowed. 

§  3367.  Specific  relief,  how  given. 

9  3368.  Preventive  relief,   how  given. 

§  3369.  Not  to  enforce  penalty,  etc. 

§3366.  Specific  relief,  etc.,  when  allowed.  Specific  or 
preventive  relief  may  be  given  in  the  cases  specified  in 
this  title  and  in  no  others.     En.  March  21,  1872. 

Cal.Rep.Cit.   71,  69;    110,  642;    117,  380;    117,  381. 

Possession  of  real  property:    Post,  sees.  3375  et  seq. 

Possession  of  personal  property:    Post,  sees.  3379  et  seq. 

Specific  performance  of  obligations:  Post,  sees.  3384 
et  seq. 

Revision  of  contracts:    Post,  sees.  3399  et  seq. 

Rescission  of  contracts:  Ante,  sees.  1688  et  seq.;  post, 
sees.  3406  et  seq. 

Cancellation  of  instruments:     Post,  sees.  3412  et  seq. 

Injunctions:    See  post,  sees.  3420  et  seq. 

§3367.  Specific  relief,  how  given.  Specific  relief  is 
given: 

1.  By  taking  possession  of  a  thing  and  delivering  it  to 
a  claimant; 

2.  By  compelling  a  party  himself  to  do  that  which  ought 
to  be  done;  or, 

3.  By  declaring  and  determining  the  rights  of  parties, 
otherwise  than  by  an  award  of  damages.  En.  March  21, 
1872. 

See  sees.  1084-1097,  writ  of  mandate.  Code  Civ.  Proc.; 
see,  also,  titles  "Lien,"  "Contesting  Elections,"  "Discharge 
of  Persons  Imprisoned  on  Civil  Process,"  "Forcible  Entry 
and  Detainer,"  "Proceedings  Supplementary  to  Execution," 
etc.,  Code  Civ.  Proc. 


15  3368-3375  SPECIFIC    RELIEF.  634 

See  post,  sees.  3375  et  seq.,  for  classification  of  the  In- 
Btances  in  whicli  specific  relief  is  given. 

§3368.  Preventive  relief,  iiow  given.  Preventive  relief 
is  given  by  prohibiting  a  party  from  doing  that  which  ought 
not  to  be  done.    En.  March  21,  1872. 

Injunction:    See  sees.  525-533,  Code  Civ.  Proc. 

Prohibition:    See  sec£.  1102-1105,  Code  Civ.  Proc. 

Preventive  relief  generally:  See  post,  sees.  3420  et  seq. 
While  section  3420  says  that  "preventive  relief  is  granted 
by  injunction,  provisional  or  final,"  the  code  commissioners 
say,  citing  that  section,  that  "  the  Code  of  Civil  Procedure 
provides  other  remedies,"  and  refers  to  writs  of  prohibition, 
certiorari,  and  proceedings  for  contempt. 

Ceritorari:     See  sees.  1067  et  seq..  Code  Civ.  Proc. 

Contempt:    See  sees.  1209-1222,  Code  Civ.  Proc. 

§  3369.  Not  to  enforce  penalty,  etc.  Neither  specific 
nor  preventive  relief  can  be  granted  to  enforce  a  penal  law, 
except  in  a  ease  of  nuisance,  nor  to  enforce  a  penalty  or 
foifeiture  in  any  case.    En.  March  21,  1872. 

CHAPTER    II. 

SPECIFIC     RELIEF. 

Article  I.      Possession   of  Real   Property,    §  3375. 

II.      Possession   of   Personal    Property,    §§  3379-3380. 

III.  Specific  Performance  of  Oblisations,  §§  3384-3395. 

IV.  -Revision   of   Contracts,   §§  3399-3402. 
V.     Rescission  of  Contracts,   §§  3406-3408. 

VI.     Cancellation    of    Instruments,    §§  3412-3414. 

ARTICLE    I. 

POSSESSION    OP    REAL    PROPERTY. 

§  3375.    Judgment  for  possession  or  title. 

§  3375.  Judgment  for  possession  or  title.  A  person  en- 
titled to  specific  real  property,  by  reason  either  of  a 
perfected  title  or  of  a  claim  to  title  which  ought  to  be 
perfected,  may  recover  the  same  in  the  manner  prescribed 
by  the  Code^  of  Civil  Procedure,  either  by  a  judgment  for 
its  possession,  to  be  executed  by  the  sheriff,  or  by  a  judg- 
ment requiring  the  other  party  to  perfect  the  title  and 
to  deliver  possession  of  the  property.    En.  March  21,  1872. 


635  SPECIFIC    RELIEF.  §§3379,3380 

Actions  concerning  i"eal  estate:  See  Code  Civ.  Proc, 
sees.  738-748. 

Writ  of  restitution:    See  Code  Civ.  Proc,  sec.  957. 

Specific  enforcement  of  contract  to  convey  realty:  See 
post,  sees.  3384  et  seq. 


ARTICLE    II. 
POSSESSION    OF    PERSONAL    PROPERTY. 

§   3379.      Judgment  for  delivery. 
§  33S0.      Specific  delivery. 

§  3379.  Judgment  for  delivery.  A  person  entitled  to  the 
immediate  possession  of  specific  personal  property  may 
recover  the  same  in  the  manner  provided  by  the  Code  of 
Civil  Procedure.    En.  March  21,  1872, 

Claim  and  delivery:    Code  Civ.  Proc,  sees.  509-520. 

Breach  of  agreement  to  transfer  personalty  may  be  com- 
pensated in  damages:     Post,  sec  3387. 

§  3380.  Specific  delivery.  Any  person  having  the  pos- 
session or  control  of  a  particular  article  of  personal  prop- 
erty, of  which  he  is  not  the  owner,  may  be  compelled 
specifically  to  deliver  it  to  the  person  entitled  to  its 
immediate  possession.  En.  March  21,  1872.  Am'd.  1873-4, 
266. 

Breach  of  agreement  to  transfer  personalty:  See  post, 
sec.  3387. 

ARTICLE    III. 

SPECIFIC    PERFORMANCE    OF    OBLIGATIONS. 

§   3384.     ■Specific  performance. 

§  33S5.      Remedy  mutual.      (Repealed.) 

§   3386.      No  remedy  unless  mutual. 

§  3387.     Distinction   between   real   and  personal  property. 

§  3388.  Contract  signed  by  one  party  only  may  be  enforced  by 
other. 

§  3389.     Liquidation  of  damages  not  a  bar  to  specific  performance. 

§   3390.     What   cannot  be   specifically   enforced. 

§   3391.     What  parties  cannot  be  compelled  to  perform. 

§  3392.  What  parties  cannot  have  specific  performance  in  their 
favor. 

§  3393.  Specific  performance  not  required  when  oppressive.  (Re- 
pealed.) 

§  3394.     Agreement  to  sell  property  by  one  who  has  no  title. 

S  3395.  Relief  against  parties  claiming  under  person  bound  to 
perform. 


{§3384-3389  SPECIFIC    RELIEF.  636 

§  3384.  Specific  performance.  Except  as  otherwise  pro- 
vided in  ttiis  article,  specific  performance  of  an  obligation 
may  be  compelled.     En.  March  21,  1872.  Am'd.  1873-4,  266. 

Cal.Rep.Cit.   110,  641;    110,  642;   135,  260. 

See  post,  sees.  3390  and  3392. 

Specifically  enforcing  revised  contract:  See  post,  sec. 
3402. 

§3385.  Remedy  mutual.  (Repealed.)  En.  March  21, 
1872.      Rep.  1873-4,  267. 

Cal.Rep.Cit.   110,   642. 

§  3386.  No  remedy  unless  mutual.  Neither  party  to  an 
obligation  can  be  compelled  specifically  to  perform  it, 
unless  the  other  party  thereto  has  performed,  or  is  com- 
pellable specifically  to  perform,  everything  to  which  the 
former  is  entitled  under  the  same  obligation,  either  com- 
pletely or  nearly  so,  together  with  full  compensation  for 
any  want  of  entire  performance.  En.  March  21,  1872. 

Cal.Rep.Cit.   91,  90  ;   110,  642. 

Performance  by  parties  seeking  execution:  Compare  with 
post,  sec.   3392. 

§  3387.  Distinction  between  real  and  personal  property. 
It  is  to  be  presumed  that  the  breach  of  an  agreement  to 
transfer  real  property  cannot  be  adequE^tely  relieved  by 
pecuniary  compensation,  and  that  the  breach  of  an  agree- 
ment to  transfer  personal  property  can  be  thus  relieved. 
En.  March  21,  1872. 

Cal.Rep.Cit.  123,  6;   123,  9;   123.  11;   135,  261;   135,  262. 

§  3388.  Contract  signed  by  one  party  only  may  be  en- 
forced by  other.  A  party  who  has  signed  a  written  con- 
tract may  be  compelled  specifically  to  perform  it,  though 
the  other  party  has  not  signed  it,  if  the  latter  has  per- 
formed, or  offers  to  perform  it  on  his  part,  and  the  case 
is  otherwise  proper  for  enforcing  specific  performance.  En. 
March  21,  1872. 

§  3389.  Liquidation  of  damages  not  a  bar  to  specific  per- 
formance. A  contract  otherwise  proper  to  be  specifically 
enforced  may  be  thus  enforced,  though  a  penalty  is  im- 
posed, or  the  damages  are  liquidated  for  its  breach,  and 
the  party  in  default  is  willing  to  pay  the  same.  En.  March 
21,  1872. 

Cal.Rep.Cit.  123,  6;   123.  9;   123,  11;   135,  261. 


637  SPECIFIC    RELIEF.  §§  3390-3392 

§  3390.  What  cannot  be  specifically  enforced.  The  fol- 
lowing obligations  cannot  be  specifically  enforced: 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  an  act  which  the  party  has 
not  power  lawfully  to  perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the 
wife  of  the  contracting  party,  or  of  any  other  third  person; 
or, 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently 
certain  to  make  the  precise  act  which  is  to  be  done  clearly 
ascertainable.    En.  March  21,  1872. 

Cal.Rep.Cit.      88,  249;   130,  530;   136,  611.       Subd.   1—119.     38; 
130,  529.       Subd.   5—122,  348.       Subd.   6—121,  398. 

§  3391.  What  parties  cannot  be  compelled  to  perform. 
Specific  performance  cannot  be  enforced  against  a  party 
to  a  contract  in  any  of  the  following  cases: 

1.  If  he  has  not  received  an  adequate  consideration  for 
the  contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepresentation, 
concealment,  circumvention,  or  unfair  practices  oi  any 
party  to  whom  performance  would  become  due  under  the 
contract,  or  by  any  promise  of  such  party  which  has  not 
been  substantially  fulfilled;  or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake, 
misapprehension,  or  surprise,  except  that  where  the  con- 
tract provides  for  compensation  in  case  of  mistake,  a  mis- 
take within  the  scope  of  such  provision  may  be  compen- 
sated for,  and  the  contract  specifically  enforced  in  other 
respects,  if  proper  to  be  so  enforced.     En.  March  21,  1872. 

Cal.Rep.Cit.      74,  563;      77,  115;      77,  116;   124,  494;   129,  287. 
Subd.   1—123,  451;   128,  128;   129,  287;   135,  261.     Subd.   2— 
128,  128;   134,  171;   135,  263. 

§  3392.  What  parties  cannot  have  specific  performance 
in  their  favor.  Specific  performance  cannot  be  enforced 
in  favor  of  a  party  who  has  not  fully  and  fairly  performed 
all  the  conditions  precedent  on  his  part  to  the  obligation 
of  the  other  party,  except  where  his  failure  to  perform  is 
only  partial,  and  either  entirely  immaterial  or  capable  of 
being  fully  compensated,  in  which  case  specific  perform- 


B§33D3-3400  SPECIFIC    RELIEF.  033 

ance  may  be  compelled,  upon  full  compensation  being  made 
for  the  default.     En.  March  21,  1872. 

§  3393.  Specific  performance  not  required  when  oppres- 
sive.    (Repealed.)     En.  March  21,  1872.    Rep.  1873-4,  267. 

§3394.  Agreement  to  sell  property  by  one  who  has  no 
title.  An  agreement  for  the  sale  of  property  cannot  be 
specifically  enforced  in  favor  of  a  seller  who  cannot  give 
to  the  buyer  a  title  free  from  reasonable  doubt.  En.  March 
21,  1872. 

§  3395.  Relief  against  parties  claiming  under  person 
bound  to  perform.  Whenever  an  obligation  in  respect  to 
real  property  would  be  specifically  enforced  against  a  par- 
ticular person,  it  may  be  in  like  manner  enforced  against 
any  other  person  claiming  under  him  by  a  title  created 
subsequently  to  the  obligation,  except  a  purchaser  or 
incumbrancer  in  good  faith  and  for  value,  and  except, 
also,  that  any  such  person  may  exonerate  himself  by  con- 
veying all  his  estate  to  the  person  entitled  to  enforce  the 
obligation.     En.  March  21,  1872. 

Cal.Rep.Cit.  122,  664;   136.  143, 

ARTICLE    IV. 

REVISION    OP    CONTRACTS. 

§  3399.  When  contract  may  be  revised. 

§   3400.  Presumption  as  to   intent  of  parties. 

§  3401.  Principles  of  revision. 

§  3402.  Enforcement  of  revised  contract. 

§  3399.     When  contract  may  be  revised.     When,  through 

fraud  or  a  mutual  mistake  of  the  parties,  or  a  mistake  of 

one  party,  which  the  other  at  the  time  knew  or  suspected, 

a  written   contract   does   not  truly   express   the   intention 

of  the  parties,  it  may  be  revised  on  the  application  of  a 

party  aggrieved,  so  as  to  express  that  intention,  so  far  as 

it  can  be  done  without  prejudice  to  rights  acquired  by  third 

persons,  in  good  faith  and  for  value.    En.  March  21,  1872. 

Cal.Rep.Cit.     65.  2S1 ;      68,616;      83,158;     85,502;      86,340; 
88,  209;      88,  212;      88,  213;   112,  352;   120,     69;   123,  !530  ; 
132,  584;   137,     75;   137,     93;   137,  458;   138,  115. 

Revised  to  express  intention:     Post,  sec.  3401. 

§  3400.  Presumption  as  to  intent  of  parties.  For  the 
purpose  of  revising  a  contract,  it  must  be  presumed  that 


639  SPECIFIC    RELIEF.  §§  3401-3407 

all  the  parties  thereto  intended  to  make  an  equitable  and 
conscientious  agreement.     En.  March  21,  1872. 
Cal.Rep.Cit.   132,   5S4. 

§  3401.  Principles  of  revision.  In  revising  a  written  in- 
strument, the  court  may  inquire  what  the  instrument  was 
intended  to  mean,  and  what  were  intended  to  be  its  legal 
consequences,  and  is  not  confined  to  the  inquiry  what  the 
language  of  the  instrument  was  intended  to  be.  En.  March 
21,   1872. 

Cal.Rep.Cit.   85,  501;   132,  584. 

§  3402.  Enforcement  of  revised  contract.  A  contract 
may  be  first  revised  and  then  specifically  enforced.  En. 
March  21,  1872. 

Cal.Rep.Cit.  132,  584;   137,  75;  137,  458. 

ARTICLE    V. 
RESCISSION    OF    CONTRACTS. 

§  3406.     When  rescission  may  be  adjudged. 

§  3407.     Rescission  for  mistake. 

§  3408.     Court  may  require  party  rescinding  to  do  equity. 

§  3406.  When  rescission  may  be  adjudged.  The  rescis- 
sion of  a  written  contract  may  be  adjudged,  on  the  appli- 
cation of  a  party  aggrieved: 

1.  In  any  of  the  cases  mentioned  in  section  1689;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  ap- 
parent upon  its  face,  and  the  parties  were  not  equally  in 
fault;  or, 

3.  When  the  public  interest  will  be  prejudiced  by  permit- 
ting it  to  stand.     En.  March  21,  1872. 

Cal.Rep.Cit.     86,  251;     98,  499;     98,  502;   120,  511.     Subd.  1— 
133,  443. 

Rescission  of  contracts  by  party  thereto:  Ante,  sec. 
1689. 

Rescission  against  consent,  how  effected:  Ante,  sec. 
1691. 

Cancellation  of  instruments:,  See  post,  sees.  3412  et  seq. 

Rescission,  how  effected:     See  ante,  sec.  1691. 

§  3407.  Rescission  for  mistake.  Rescission  cannot  be 
adjudged  for  mere  mistake,  unless  the  party  against  whom 
it  is  adjudged  can  be  restored  to  substantially  the  same 


§§  340S-3414  SPECIFIC    RELIEF'.  640 

position  as  if  the  contract  had  not  been  made.    En.  March 

21,  1872. 

Cal.Rep.Cit.     94,     58;     98.  499;   109,  426;   114,  168;   120,  511; 
124,  268. 

Placing  party  in  statu  quo:    Ante,  sec.  1691. 

§3408.     Court  may  require  party  rescinding  to  do  equity. 

On  adjudging  the  rescission  of  a  contract,  the  court  may 
require  the  party  to  whom  such  relief  is  granted  to  make 
any  compensation  to  the  other  which  justice  may  require. 
En.  March  21.  1872. 

Cal.Rep.Cit.  94,  58;   98,  499;   98,  502;   120,  511;   123,  378. 

ARTICLE    VI. 

CANCELLATION    OF    INSTRUMENTS. 

§  3412.     When  cancellation  may  be  ordered 
§  3413.      Instrument  obviously  void. 
§  3414.     Cancellation  in  part. 

§3412.     When  cancellation   may  be  ordered.     A  written 

instrument,    in   respect    to    which    there    is    a    reasonable 

apprehension  that  if  left  outstanding  it  may  cause  serious 

injury  to  a  person  against  whom  it  is  void  or  voidable, 

may,  upon  his  applicatioh,  be  so  adjudged,  and  ordered  to 

be  delivered  up  or  canceled.    En.  March  21,  1872. 

Cal.Rep.Cit.     59,  197;     79,  445;      83,  238;   102,  631;   126,  474; 
132,  697. 

Rescission  of  contracts:  See  ante,  sees.  1688  et  seq.; 
3406  et  seq. 

Removing  cloud  on  title:     See  sec.  738,  Code  Civ.  Proc. 

Cancellation  and  alteration  of  instruments  by  parties 
thereto:     See  ante,  sees.  1697  et  seq. 

§  3413.  Instrument  obviously  void.  An  instrument,  the 
invalidity  of  which  is  apparent  upon  its  face,  or  upon  the 
face  of  another  instrument  which  is  necessary  to  the  use 
of  the  former  in  evidence,  is  not  to  be  deemed  capable  of 
causing  injury,  within  the  provisions  of  the  last  section. 
En.  March  21,  1872. 

Cal.Rep.Cit.   55,  566;   79.  445.    ' 

§  3414.  Cancellation  in  part.  Where  an  instrument  is 
evidence  of  different  rights  or  obligations,  it  may  be  can- 
celed in  part,  and  allowed  to  stand  for  the  residue.  En. 
March  21,  1872. 

Cal.Rep.Cit.   55,  566;   86.  251. 


641  PREVENTIVE    RELIEF.  §§  3420-3423 

CHAPTER    III. 
PREVENTIVE     RELIEF. 

9  3420.  Preventive  relief,  how  granted. 

§  3421.  Provisional    injunctions. 

§   3422.  Injunction,  when  allowed. 

i  3423.  Injunction,  when  not  allowed. 

§  3420.  Preventive  relief,  how  granted.  Preventive  re- 
lief is  granted  by  injunction,  provisional  or  final.  En. 
March  21.  1872. 

Proceedings  in  other  courts:    Post,  sec. 3423. 

Mortgage. — Injunction  to  restrain  party  in  possession 
from  waste  during  foreclosure  suit:  Code  Civ.  Proc,  sec, 
745. 

Enjoining  nuisance:     See  Code  Civ.  Proc,  sec.  731. 

§3421.  Provisional  injunctions.  Provisional  injunctions 
are  regulated  by  the  Code  of  Civil  Procedure.  En.  March 
21,  1872. 

Provisional  injunctions:  See  Code  Civ.  Proc,  sees.  525- 
533. 

§  3422.  Injunction,  when  allowed.  Except  where  other- 
wise provided  by  this  title,  a  final  injunction  may  be 
granted  to  prevent  the  breach  of  an  obligation  existing  in 
favor  of  the  applicant: 

1.  Where  pecuniary  compensation  would  not  afford 
adequate  relief; 

2.  Where  it  would  be  extremely  difiicult  to  ascertain 
the  amount  of  compensation  which  would  afford  adequate 
relief; 

3.  Where  the  restraint  is  necessary  to  prevent  a  multi- 
plicity of  judicial  proceedings;   or, 

4.  Where  the  obligation  arises  from  a  trust.  En.  March 
21,  1872. 

Cal.Rep.Cit.   64,  473;   113,  276;   117,  381.     Subd.   3—117,  380. 

§3423.  Injunction,  when  not  allowed.  An  injunction 
cannot  be  granted: 

1.  To  stay  a  judicial  proceeding  pending  at  the  com- 
mencement of  the  action  in  which  the  injunction  is  de- 
manded, unless  such  restraint  is  necessary  to  prevent  a 
multiplicity  of  such  proceedings. 


S  3423  PREVENTIVE    RELIEF.  642 

2.  To  stay  proceedings  in  a  court  of  the  United  States. 

3.  To  stay  proceedings  in  another  state  upon  a  judgment 
of  a  court  of  that  state. 

4.  To  prevent  the  execution  of  a  public  statute  by  oflBcers 
of  the  law,  for  the  public  benefit. 

5.  To  prevent  the  breach  of  a  contract,  the  performance 
of  which  would  not  be  specifically  enforced. 

6.  To  prevent  the  exercise  of  a  public  or  private  office, 
in  a  lawful  manner  by  the  person  in  possession. 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation. 

En.  March  21,  1872.     Am'd.  1873-4,  267. 

Cal.Rep.Cit.  79,  548;  117,  379.   Subd.  1—117,  378.  Subd.  2— 
117,  378.   Subd.  3—117,  378.   Subd.  4  —  75,  181. 


PART  II. 


SPECIAL  RELATIONS  OF  DEBTOR  AND  CREDITOR. 

Title     I.     General  Principles,  §§  3429-3433. 

n.     Fraudulent  Instruments  and  Transfers,  §§  3439- 

3442. 
III.    Assignments  for  the  Benefit  of  Creditors,  §§  3449- 
3473. 

TITLE    I. 

GENERAL    PRINCIPLES. 

§  3429.  Who  is  a  debtor. 

I  3430.  Who    is   a   creditor. 

§  3431.  Contracts  of  debtor  are  valid. 

§  3432.  Payments  in  preference. 

§  3433.  Relative  rights  of  different  creditors. 

§  3429.  Who  is  a  debtor.  A  debtor,  within  the  meaning 
of  this  title,  is  one  who,  by  reason  of  an  existing  obligation, 
is  or  may  become  liable  to  pay  money  to  another,  whether 
such  liability  is  certain  or  contingent.    En.  March  21,  1872. 

Cal.Rep.Cit.   68,  12;   112.  490;   121,  25;   132,  465. 

§3430.  Who  is  a  creditor.  A  creditor,  within  the  mean- 
ing of  this  title,  is  one  in  whose  favor  an  obligation  exists, 
by  reason  of  which  he  is,  or  may  become,  entitled  to  the 
payment  of  money.     En.  March  21,  1872. 

Cal.  Rep.  Cit.   112,  490;    121,  25;   132,  465. 

§3431.  Contracts  of  debtor  are  valid.  In  the  absence 
of  fraud,  every  contract  of  a  debtor  is  valid  against  all  his 
creditors,  existing  or  subsequent,  who  have  not  acquired  a 
lien  on  the  property  affected  by  such  contract.  En.  March 
21,  1872. 

Cal.Rep.Cit.  127,  312;   135,  158. 

§  3432.  Payments  in  preference.  A  debtor  may  pay  one 
creditor  in  preference  to  another,  or  may  give  to  one 
creditor  security  for  the  payment  of  his  demand  in  prefer- 
ence to  another.     En.  March  21,  1872. 

Cal.Rep.Cit.     82,  135;     83,  309;   100,  631;   104,  266;  108,     85; 

127,     84;   127,  137;   128,  660;   135,  158. 
Preferring  creditor:    Post,  sec.  3457,  subd.  1. 


§§3433-3440         FRAUDULENT     INSTRUMENTS,     ETC.  644 

§  3433.  Relative  rights  of  different  creditors.  Where  a 
creditor  is  entitled  to  resort  to  each  of  several  funds  for 
the  satisfaction  of  his  claim,  and  another  person  has  an 
interest  in,  or  is  entitled  as  a  creditor  to  resort  to  some, 
but  not  all  of  them,  the  latter  may  require  the  former  to 
seeli  satisfaction  from  those  funds  to  which  the  latter  has 
no  such  claim,  so  far  as  it  can  be  done  without  impairing 
the  right  of  the  former  to  complete  satisfaction,  and  with- 
out doing  injustice  to  third  persons.    En.  March  21,  1872. 

Cal.Rep.Cit.  113,  466;   114,  541;   119,  296;   127,  84. 

Marshaling  of  assets:      See  ante,  sec.  2899. 
TITLE    11. 

FRAUDULENT    INSTRUMENTS    AND    TRANSFERS. 

§  3439.  Transfers,  etc.,  witli  Intent  to  defraud  creditors. 

§  3440.  Certain  transfers  presumed  fraudulent. 

§  3441.  Creditor's  right  must  be  judicially  ascertained. 

§  3442.  Question  of  fraud,  how  determined. 

§  3439.     Transfers,  etc.,  with  intent  to  defraud  creditors. 

Every  transfer  of  property  or  charge  thereon  made,  every 

obligation  incurred,  fl,nd  every  judicial  proceeding  taken, 

with  intent  to  delay  or  defraud  any  creditor  or  other  person 

of  his  demands,  is  void  against  all  creditors  of  the  debtor, 

and  their  succes'Sors  in  interest,  and  against  any  person 

upon  whom  the  estate  of  the  debtor  devolves  in  trust  for 

the  benefit  of  others  than  the  debtor.    En.  March  21,  1872. 

Cal.Rep.Cit.  69,  250;  75,  187;  83,  237;  83,  238;      84,  245; 

84,249;  84,508;  88,397;  89,288;  89,289;      94,188; 

114,  454';  114,  456;  114,  457;  114,  458;  114,  535;   114,  536; 

115,  273;  117,  148;  128,  108;  131,  627;  135,  125;   135,  160; 
138,  250. 

Arrest:    See  Code  Civ.  Proc,  sec.  479. 

Fraudulent  conveyance:    See  Pen.  Code,  sees.  154,  531. 

§  3440.  Certain  transfers  presumed  fraudulent.  Every 
transfer  of  personal  property,  other  than  a  thing  in  action, 
or  a  ship  or  cargo  at  sea  or  in  a  foreign,  port,  and  every 
lien  thereon,  other  than  a  mortgage,  when  allowed  by  law, 
and  a  contract  of  bottomry  and  respondentia,  is  con- 
clusively presumed,  if  made  by  a  person  having  at  the 
time  the  possession  or  control  of  the  property,  and  not 
accompanied  by  an  immediate  delivery,  and  followed  by  an 
actual  and  continued  change  of  possession  of  the  things 


645  FRAUDULENT     INSTRUMENTS,     ETC.  §  3440 

transferred,  to  be  fraudulent,  and  therefore  void,  against 
those  who  are  his  creditors  while  he  remains  in  possession, 
and  the  successors  in  interest  of  such  creditors,  and  against 
any  persons  on  whom  his  estate  devolves  in  trust  for  the 
benefit  of  others  than  himself,  and  against  purchasers 
or  incumbrancers  in  good  faith  subsequent  to  the  transfer  r 
provided,  however,  that  the  provisions  of  this  section 
%hall  not  apply  to  the  transfers  of  wines  in  the  wineries  or 
wine  cellars  of  the  makers  or  owners  thereof,  or  other 
persons  having  possession,  care,  and  control  of  the  same, 
and  the  pipes,  casks,  and  tanks  in  v/hich  the  said  wines 
are  contained,  which  transfers  shall  be  made  in  writing, 
and  certified  and  verified  in  the  same  form  as  provided 
for  chattel  mortgages  and  which  shall  be  recorded  in  the 
book  of  miscellaneous  records  in  the  office  of  the  county 
recorder  of  the  county  in  which  the  same  are  situated; 
provided,  also,  that  the  sale,  transfer,  or  assignment  of  a 
stock  in  trade  (or  of  such  a  quantity  of  a  stock  in  trade 
as  to  be  substantially  a  whole)  in  bulk,  or  in  any  manner 
otherwise  than  in  the  ordinary  course  of  trade  and  in  the 
regular  and  usual  practice  and  method  of  business  of  the 
vendor,  transferrer,  or  assignor,  will  be  conclusively  pre- 
sumed to  be  fraudulent  and  void  as  against  the  existing 
creditors  of  the  vendor,  transferrer,  or  assignor,  unless  at 
least  five  days  before  the  consummation  of  such  sale, 
transfer,  or  assignment  the  vendor,  transferrer,  or  assignor, 
or  the  intended  vendee,  transferee,  or  assignee  shall  record 
in  the  office  of  the  county  recorder  in  the  county  or  counties 
in  which  the  said  stock  in  trade  is  situated,  a  notice  of 
said  intended  sale,  transfer,  or  assignment,  stating  the 
name  and  address  of  the  intended  vendor,  transferrer,  or 
assignor,  and  the  name  and  address  of  the  intended  vendee, 
transferee,  or  assignee,  and  a  general  statement  of  the 
character  of  the  property  or  merchandise  intended  to  be 
sold,  assigned,  or  transferred,  and  the  date  when,  and  the 
place  where,  the  purchase  price,  if  any  there  be,  is  to  be 
paid;  provided,  nevertheless,  that  if  such  intended  sale  is 
to  be  at  public  auction  the  notice  above  required  to  be 
recorded  shall  state  that  fact,  the  time,  terms,  and  place 
of  said  sale,  the  names  and  addresses  of  the  vendor  and 
auctioneer,  and  a  general  statement  of  the  character  of  the 
property  or  merchandise  intended  to  be  sold;  but  such  sale 


SS  3441,  3442        FRAUDULENT    INSTRUMENTS.    ETC. 


046 


shall  in  no  event  occur  within  five  days  of  the  date  of 
recordation  of  said  notice;  provided  further,  that  the  pro- 
visions of  tliis  section  shall  not  apply  or  extend  to  any 
Bale,  transfer  or  assignment  made  under  the  direction  or 
order  of  a  court  of  competent  jurisdiction,  or  by  any  ex- 
ecutor, administrator,  guardian,  receiver,  or  other  officer 
or  person  acting  in  the  regular  and  proper  discharge  of 
official  duty,  or  in  the  discharge  of  any  trust  imposed  upoip 
him  by  law,  nor  to  any  transfer  or  assignment  made  for 
the  benefit  of  creditors  generally,  nor  to  any  sale,  transfer 
or  assignment  of  any  property  exempt  from  execution.  En. 
March  21,  1872.     Am'd.  1895,  47;  1903,  111. 


al.Rep.Cit 

53, 

402 

53, 

625 

54, 

629 

56, 

333 

56,  334 

63,   4 

63, 

245 

63, 

496 

64, 

79 

67, 

284 

69,  249 

70,  563 

73, 

212 

73, 

323 

73, 

401 

74, 

379 

76,  168 

76,  307 

76, 

459 

76, 

540 

77, 

244 

77, 

546 

78,  116 

81.  96 

81, 

97 

84, 

170 

84, 

171 

84, 

245 

84,  249 

84,  557 

89, 

289 

89, 

296 

89, 

303 

89, 

503 

91,  295 

92,  79 

94, 

187 

94, 

525 

95, 

265 

95, 

267 

98,  459 

99,  343 

101. 

240 

102. 

550 

102, 

552 

107, 

75 

107.  76 

107,  147 

107, 

148 

109, 

158 

109, 

201 

109, 

202 

112,   13 

114,  293 

114, 

527 

114, 

529 

114, 

535 

114, 

536 

115,  325 

115,  326 

116, 

677 

117. 

40 

117. 

47 

117, 

146 

119,  82 

121,  242 

122, 

470 

122, 

550 

123, 

315 

124, 

202 

124,  203 

124,  204 

125, 

187 

125, 

188 

126, 

558 

126, 

559 

127,  231 

127,  296 

127, 

297 

127, 

298 

127, 

303 

127, 

308 

127,  311 

127,  312 

128, 

37 

128, 

326. 

Chattel  mortgage. — Change  of  possession  not  necessary; 
it  must  be  recorded:     Ante,  sec.  2959. 

Chattel  mortgage,  when  void  as  to  creditors  and  pur- 
chasers:   Ante,  sec.  2957. 

Bond  by  grantee  on  suit  to  set  aside  fraudulent  convey- 
ance:    See  Code  Civ.  Proc,  sees.  676-680M;. 

§3441.  Creditor's  right  must  be  judicially  ascertained. 
A  creditor  can  avoid  the  act  or  obligation  of  his  debtor 
for  fraud  only  where  the  fraud  obstructs  the  enforcement, 
by  legal  process,  of  his  right  to  take  the  property  affected 
by  the  transfer  or  obligation.     En.  March  21,  1872. 

Cal.Rep.Cit.   93,  286  ;   95,  532  ;   132,  613. 

§  3442.  Question  of  fraud,  how  determined.  In  all  cases 
arising  under  section  twelve  hundred  and  twenty-seven,  or 
under  the  provisions  of  this  title,  except  as  otherwise  pro- 
vided in  section  thirty-four  hundred  and  forty,  the  question 
of  fraudulent  intent  is  one  of  fact  and  not  of  law;  nor 
can  any  transfer  or  charge  be  adjudged  fraudulent  solely 
on  the  ground  that  it  was  not  made  for  a  valuable  consid- 


64T 


ASSIGNMENTS. 


§  3449 


cration;  provided,  however,  that  any  transfer  or  incum- 
brance of  property  made  or  given  voluntarily,  or  without  a 
valuable  consideration,  by  a  party  while  insolvent  or  in 
contemplation  of  insolvency,  shall  be  fraudulent,  and  void 
as  to  existing  creditors.  En.  IVJarch  21,  1872.  Am'd.  1895, 
154. 

Cal.Rep.Cit.      54,629;  65,344;  74,543;  83.371;  84,508; 

89,289;      89,293;  89,296;  92,622;  93,  286 ;  104,  223 ; 

109,  671;   117,  146;  117,  148;  117,  150;  118,  434;  122,  117; 

122,  658;   126,  638;  126,  639;  126,  652. 


TITLE    III. 

ASSIGNMENTS    FOR    THE    BENEFIT    OF    CREDITORS. 


i  3449. 
§  3450. 
§  3451. 
§  3452. 
§  3453. 
§  3454. 
S  3455. 

§  3456. 

§  3457. 

S  3458. 

S  3459. 

S  3460. 
§  3461. 
§  3462. 
§  3463. 
§  3464. 
§  3465. 
§  3466. 
§  3467. 
§  3468. 
§  3469. 
§  3470. 
§  3471. 
§  3472. 
§  3473. 

§  3449.  When  debtor  may  execute  assignment.  An  in- 
solvent debtor  may  in  good  faith  execute  an  assignment 
of  property  in  trust  for  the  satisfaction  of  his  creditors,  in 
conformity  to  the  provisions  of  this  chapter;  subject,  how- 
ever, to  the  provisions  of  this  code  relative  to  trusts  and 
fraudulent  transfers,  and  to  the  restrictions  imposed  by 
law  upon  assignments  by  special  partnerships,  by  corpora- 
tions, or  by  other  specific  classes  or  persons.  Every  such 
assignment  shall  contain  a  list  of  the  names  of  the  creditors 
of  the  assignor,  and  their  places  of  residence  and  amounts 


When  debtor  may  execute  assignment. 

Insolvency,   what. 

Certain  transfers  not  affected. 

What  debts  may  be  secured. 

What  preferences  may  be  given.      (Repealed.) 

Preference  must  be  absolute.      (Repealed.) 

Certain   rights   not   affected   by   preferences   in   assignment. 

(Repealed.) 
Joint  and  separate  debts.      (Repealed.) 
Assignment,   when  void. 
Assignment  to  be  in  writing. 
Compliance    with    provisions    of    last    section    necessary    to 

validity   of  assignment. 
Assignee  takes,  subject  to  rights  of  third  parties. 
Inventory   required. 

Affidavit  of  assignor  to  be  filed  with  inventory. 
Recording  assignment  and  filing  inventory. 
Same. 

Effect  of  omitting  to  record. 
Assignment  of  real  property. 
Bond  of  assignees. 

Conditions  of   disposal   and   conversion. 
Accounting  of  assignee. 
Property  exempt. 
Commissions   of  assignee. 

Assignees  protected  for  acts  done  In  good  faith. 
Assent  of  creditor  necessary  to  modification  of  assignment. 


§  3449  ASSIGNMENTS.  648 

of  their  respective  demands,  and  the  amounts  and  nature 
of  any  security  therefor,  and  shall,  subject  to  the  other 
provisions  of  this  section,  be  made  to  the  sheriff  of  the 
county,  or  city  and  county,  wherein  the  assignor  resides, 
if  the  assignor  resides  within  this  state;  or  in  case  the 
assignor  resides  out  of  this  state,  then  to  the  sheriff  of 
the  county,  or  city  and  county,  wherein  the  property 
assigned,  or  some  of  it,  is  situated;  but  when  the  assignor 
resides  out  of  the  state,  an  assignment  made  as  herein 
provided  may,  by  its  tei'ms,  transfer  any  property  of  the 
assignor  in  this  state.  The  sheriff  shall  forthwith  take 
possession  of  all  the  property  so  assigned  to  him,  ana  keep 
the  same  till  delivered  by  him,  as  hereinafter  provided. 
When  the  assignment  has  been  made,  as  herein  provided, 
the  sheriff  shall  immediately,  by  mail,  notify  the  creditors 
named  in  the  assignment,  at  their  places  of  residence  as 
given  therein,  to  meet  at  his  office  on  a  day  and  hour  to 
be  appointed  by  him,  of  not  less  than  eight,  nor  more  than 
ten  days  from  the  date  of  the  delivery  of  the  assignment  to 
him,  for  the  purpose  of  electing  one  or  more  assignees,  as 
they  may  determine,  in  the  place  and  stead  of  the  said 
sheriff  in  the  premises,  and'  shall  also  publish  a  notice  of 
such  meeting,  and  the  purpose  thereof,  at  least  once  before 
such  meeting,  in  some  newspaper  published  in  his  county, 
or  city  and  county.  The  notice  so  to  be  mailed  shall  also 
contain  a  statement  of  the  amount  of  the  demand  of  the 
creditor,  and  the  amount  and  nature  of  any  security  there- 
for, as  set  forth  in  the  assignment;  and  if  any  creditor 
^shall  not  find  the  amount  of  his  claim  to  be  correctly  so 
stated,  he  may  file  with  said  sheriff,  at  or  before  such 
meeting,  a  statement,  under  oath,  of  his  demand,  and  such 
statement  shall,  for  the  purpose  of  voting  as  hereinafter 
provided,  be  accepted  by  said  sheriff  as  correct;  and  when 
no  such  statement  is  filed,  the  statement  of  amount  as  set 
forth  in  the  assignment  shall  be  accepted  by  the  sheriff 
as  correct.  No  creditor  having  a  mortgage  or  pledge  of 
real  or  personal  property  of  the  debtor,  or  lien  thereon, 
for  securing  the  payment  of  a  debt  owing  to  him  from  the 
debtor,  shall  be  allowed  to  vote  any  part  of  his  claim  at 
such  meeting  of  creditors,  iinless  he  shall  have  first  con 
veyed,  released,  or  delivered  up  his  said  security  to  said 
sheriff,  for  the  benefit  of  all   creditors  of  said  assignor. 


«49  ASSIGNMENTS.  8§  3450,  3451 

At  such  meeting  the  sheriff  shall  preside,  and  a  majority 
in  amount  of  demands  present  or  represented  .by  proxy 
shall  control  all  questions  and  decisions.  The  creditors 
may  adjourn  such  meeting  from  time  to  time,  and  may  vote 
on  all  questions  either  in  person  or  by  proxy  signed  and 
acknowledged  before  any  officer  authorized  to  take  ac- 
knowledgments, and  filed  with  the  sheriff.  At  such  a  meet- 
ing, or  any  adjournment  thereof,  the  creditors  may  elect 
one  or  more  assignees  from  their  own  number,  in  the  place 
and  stead  of  the  sheriff,  and  the  person  or  persons  so 
elected  shall  afterwards  be  the  assignee  or  assignees  under 
the  provisions  of  this  title;  and  the  sheriff,  by  transfer  in 
writing,  acknowledged  as  required  by  section  three 
thousand  four  hundred  and  fifty-eight,  shall  at  once  as- 
sign to  such  elected  assignee  or  assignees,  upon  the  trusts 
in  this  title  provided,  all  the  property  so  assigned  to  him, 
and  deliver  possession  thereof.  All  recitals  in  such  assign- 
ment by  said  sheriff  of  notices  of  such  meeting,  and  the 
holding  thereof,  and  of  the  due  election  of  such  assignee 
or  assignees,  shall  be  prima  facie  proof  of  the  facts  recited. 
The  sheriff  shall,  before  the  delivery  of  such  assignment, 
be  paid  the  expenses  incurred  by  him,  and  fees  in  such 
amount  as  would  by  law  be  collectible  if  the  property 
assigned  had  been  levied  upon  and  safely  kept  under  at- 
tachment. Thereupon,  and  after  the  record  of  such  last- 
named  assignment,  as  in  this  title  provided,  such  elected 
assignee  or  assignees  shall  take,  and  hold,  and  dispose  of 
all  such  property  and  its  proceeds,  upon  the  trusts  and 
conditions  and  for  the  purposes  in  this  title  provided.  En. 
March  21,  1872',    Am'd.  1889,  80;  1895,  83. 

Cal.Rep.Cit.      63,188;      78,265;      83,237;      87,456;      94,188; 
98,  411;   104,  399;   108,     86;   108,     87;   112,  495;    113,  431; 
124,  161;   124,  163;   128,  107. 

Partner  cannot  assign:    See  ante,  sec.  2430,  subd.  1. 

§  3450.  Insolvency,  what.  A  debtor  is  insolvent,  within 
the  meaning  of  this  title,  when  he  is  unable  to  pay  his 
debts  from  his  own  means  as  they  become  due.  En.  March 
21,   1872. 

Cal.Rep.Cit.  74,  543;   78,  576;   84,  48;   117,  155. 

§3451.  Certain  transfers  not  affected.  The  provisions 
.of  this  title  do  not  prevent  a  person  residing  in  another 
.state  or  country  from  making  there,  in  good   faith,  and 

Civ.   Code— 28 


§§3452-3157  ASSIGNMENTS.  650 

without  intent  to  evade  the  laws  of  this  state,  a  transfer 
of  property  situated  within  it;  but  such  person  cannot 
make  a  general  assignment  of.  property  situated  in  this 
state  for  the  satisfaction  of  all  his  creditors,  except  as  in 
this  title  provided;  nor  do  the  provisions  of  this  title  affect 
the  power  of  a  person,  although  insolvent,  and  whether 
residing  within  or  without  this  state,  to  transfer  property 
in  this  state,  in  good  faith,  to  a  particular  creditor,  for  the 
purpose  of  paying  or  securing  the  whole  or  a  part  of  a  debt 
owing  to  such  creditor,  whether  in  his  own  right  or  other- 
wise. En.  March  21,  1872.  Am'd.  18S9,  82. 
Cal.Rep.Cit.  83,  309;   126.  50. 

§  3452.  What  debts  may  be  secured.  An  assignment  for 
the  benefit  of  creditors  may  provide  for  aay  subsisting 
liability  of  the  assignor  which  he  might  lawfully  pay, 
whether  absolute  or  contingent.     En.  March  21,  1872. 

Cal.Rep.Cit.   128,   107. 

§3453.     What    preferences    may    be    given.      (Repealed.) 

En.  March  21,  1872.     Rep.  1873-4,  267. 

§3454.  Preference  must  be  absolute.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  267. 

§  3455.  Certain  rights  not  affected  by  preferences  in 
assignment.  (Repealed.)  En.  March  21,  1872.  Rep.  1873-4, 
267. 

§  3456.  Joint  and  separate  debts.  (Repealed.)  En. 
March  21,  1872.     Rep.  1873-4,  267. 

§  3457.  Assignment,  when  void.  An  assignment  for  tha 
benefit  of  creditors  is  void  against  any  creditor  of  the 
assignor  not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of  debts 
over  another. 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  com- 
promise his  demand. 

3.  If  it  provide  tor  the  payment  of  any  claim  known  to 
the  assignor  to  be  false  or  fraudulent;  or  for  the  payment 
of  more  upon  any  claim  thf ;'  is  known  to  be  justly  due 
from  the  assignor. 

4.  If  it  reserve  any  interest  in  the  assigned  property,  or 
in  any  part  thereof,  to  the  assignor,  or  for  his  benefit 
before  all  his  existing  debts  are  paid. 


651  ASSIGNMENTS.  §§  345S-3i61 

5.  If  it  confer  upon  the  assignee  any  power  which,  if 
exercised,  might  prevent  or  delay  the  immediate  conversion 
of  the  assigned  property  to  the  purposes  of  the  trust. 

6.  If  it  exempt  him  from  liability  for  neglect  of  duty  or 

misconduct.     En.  March  21,  1872.     Am'd.  1873-4,  267. 

Cal.Rep.Cit.      85,  135;      87,  457;   108,     85;   108,     87;   113,  431. 
Subd.   4  —  87,  456;    131,  627.       Subd.   5  —  98,  414. 

Preferences:  See  ante,  sec.  3432.  Preferences  by  special 
partnerships:   Ante,  sec.  2496. 

§  3458.  Assignment  to  be  in  writing.  An  assignment  for 
the  benefit  of  creditors  must  be  in  writing,  subscribed  by 
the  assignor,  or  by  his  agent  thereto  authorized  in  writing, 
and  the  transfer  by  the  sheriff  must  also  be  in  writing, 
subscribed  by  the  sheriff  in  his  official  capacity.  Both  such 
assignment  and  such  transfer  must  be  acknowledged,  or 
proved  and  certified,  in  the  mode  prescribed  by  the  chapter 
on  recording  transfers  of  real  property,  and  be  recorded  as 
required  by  sections  thirty-four  hundred  and  sixty-three 
and  thirty-four  hundred  and  sixty-four;  but  recording  in 
one  county  constitutes  a  compliance  with  the  following 
section.    En.  March  21,  1872.    Am'd.  1889,  82. 

Cal.Rep.Cit.   98,  411;   104,  399. 

§  3459.  Compliance  witli  provisions  of  last  section  neces- 
sary to  validity  of  assignment.  Unless  the  provisions  of 
the  last  section  are  complied  with,  an  assignment  for  the 
benefit  of  creditors  is  void  against  every  creditor  of  the 
assignor  not  assenting  thereto.    En.  March  21,  1872. 

Cal.Rep.Cit.   98,   411. 

§  3460.  Assignee  takes,  subject  to  rights  of  third  parties. 
An  assignee  for  the  benefit  of  creditors  is  not  to  be  re- 
garded as  a  purchaser  for  value,  and  has  no  greater  rights 
than  his  assignor  had,  in  respect  to  things  in  action  trans-~ 
ferred  by  the  assignment.     En.  March  21,  1872. 

Cal.Rep.Cit.   128,   106. 

§  3461.  Inventory  required.  Within  twenty  days  after 
an  assignment  is  made  for  the  benefit  of  creditors,  the 
assignor  must  make  and  file,  in  the  manner  prescribed 
by  section  3463,  a  full  and  true  inventory,  showing: 

1.  All  the  creditors  of  the  assignor; 

2.  The  place  of  residence  of  each  creditor,  if  known  to 
the  assignor;  or  if  not  known,  that  fact  must  be  stated; 


f  3462  ASSIGNMENTS.  652 

3.  The  sum  owing  to  each  creditor  and  the  nature  of 
each  de'U  or  liability,  whether  arising  on  written  security, 
account,  or  otherwise; 

4.  The  true  consideration  of  the  liability  in  each  case, 
and  the  place  where  it  arose; 

5.  Every  existing  judgment,  mortgage,  or  other  security 
for  the  payment  of  any  debt  or  liability  of  the  assignor; 

6.  All  property  of  the  assignor  at  the  date  of  the  assign- 
ment, which  is  exempt  by  law  from  execution;  and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assign- 
ment, both  real  and  personal,  of  every  kind,  not  so  exempt 
and  the  incumbrances  existing  thereon,  and  all  vouchers 
and  securities  relating  thereto,  and  the  value  of  such  prop- 
erty according  to  the  best  knowledge  of  the  assignor.  En. 
March  21,  1872. 

Cal.Rep.Cit.      78,  267;      80,  543;      82,  610;      85,  135;      87,  460; 
98,  412.       Subd.   7  —  85,  136. 

§  3462.  Affidavit  of  assignor  to  be  filed  with  inventory. 
An  affidavit  must  be  made  by  every  assignor  executing 
an  assignment  for  the  benefit  of  creditors,  to  be  annexed 
to  and  filed  with  the  inventory  mentioned  in  the  last  sec- 
tion, to  the  effect  that  the  same  is  in  all  respects  just  and 
true  according  to  the  best  of  such  assignor's  knowledge 
and  belief.  If  the  assignor  neglects  and  refuses  to  make 
md  file)  such  inventory  and  affidavit  within  sala  twenty 
days,  the  assignment  shall  not,  for  that  reason,  be  affected 
in  any  way,  but  in  that  event  the  assignee  or  assignees 
elected  by  the  creditors  shall  within  twenty  days  there- 
after make  and  file,  in  the  office  of  the  county  recorder 
where  the  assignment  is  first  recorded,  a  verified  in- 
ventory of  all  assets  received  by  them;  and  such  as- 
signee  or  assignees  may  at  any  time,  or  from  time  to 
time,  after  the  transfer  to  them  by  the  sheriff,  by 
petition  to  the  superior  court  of  the  county,  or  city  and 
county,  where  the  assignment  is  first  recorded,  cause  the 
assignor,  by  order  or  citation,  to  appear  before  said  court, 
or  a  commissioner  or  referee  to  be  appointed  by  it,  at  a 
time  and  place  within  the  county,  or  city  and  county,  to 
be  designated  in  the  order  or  citation,  to  be  examined 
touching  the  matters  mentioned  in  section  three  thousand 
tour  hundred  and  sixty-one,  and  any  other  matters  relative 
to  the  assignment,  and  to  have  with  him  all  books  of 
vouchers,   and   papers    relating   to   the    assigned 


653  ASSIGNMENTS.  §§  3463-3466 

property;  and  such  court  may  by  its  order  require  tlie 
surrender  to  such  assignee  or  assignees  of  such  boolis, 
voucliers,  and  papers,  to  be  by  them  retained  until  their 
trust  is  fully  completed  and  performed.  En.  March  21, 
1872.     Am'd.  1889,  82. 

Cal.Rep.Cit.   82,  610  ;    87,  455  ;    87,  459. 

§  3463.  Recording  assignment  and  filing  inventory.  An 
assignment  for  the  benefit  of  creditors  must  be  recorded, 
and  the  inventory  required  by  section  3461  filed  with  the 
county  recorder  of  the  county  in  which  the  assignor  resided 
at  the  date  of  the  assignment;  or,  if  he  did  not  then  reside 
in  this  state,  with  the  recorder  of  the  county  in  which  his 
principal  place  of  business  was  then  situated;  or  if  he  had 
not  then  a  residence  or  place  of  business  in  this  state,  with 
the  recorder  of  the  county  in  which  the  principal  part  of  the 
assigned  property  was  then  situated.     En.  March  21,  1872. 

Cal.Rep.Cit.  87,  460  ;   98,  411 ;   104,  399. 

§  3454.  Same.  If  an  assignment  for  the  benefit  of 
creditors  is  executed  by  more  than  one  assignor,  it  may 
be  recorded,  and  a  copy  of  the  inventory,  required  by 
section  3461,  may  be  filed  with  the  recorder  of  the  county 
in  which  any  of  the  assignors  resided  at  its  date,  or  in 
which  any  of  them,  not  then  residing  in  the  state,  had  then, 
a  place  of  business.    En.  March  21,  1872. 

Cal.Rep.Cit.   98,  411;   104,  399. 

§  3465.  Effect  of  omitting  to  record.  An  assignment  for 
the  benefit  of  creditors  is  void  against  creditors  of  the 
assignor  and  against  purchasers,  and  incumbrancers  in 
good  faith,  and  for  value,  unless  it  is  recorded  as  provided 
in  this  title,  and  unless  either  the  inventory  required  by 
section  3461,  or  the  inventory  required  of  the  assignee  or 
assignees  by  section  3462,  is  filed  in  the  manner  provided 
in  this  title  and  within  the  time  designated.  En.  March 
21,  1872.     Am'd.  1877-8,  90;  1889,  83. 

Cal.Rep.Cit.   85,  135  ;   87,  460  ;   98.  412. 

§  3466.  Assignment  of  real  property.  Where  an  assign- 
ment for  the  benefit  of  creditors  embraces  real  property, 
it  is  subject  to  the  provisions  of  article  IV  of  the  chapter 
on  Recording  Transfers,  as  well  as  to  those  of  this  title. 
En.  March  21,  1872. 

Cal.Rep.Cit.   98,  412  ;   104,  398. 

Recording  transfers:    Ante,  sees.  1158-1217. 


{§  3467.  34ao  ASSIGNMENTS,  654 

§  3467.  Bond  of  assignees.  No  bond  shall  be  given  by 
the  sheriff,  but  he  shall  be  liable  on  his  ofTicial  bond  for 
the  care  and  custody  of  the  property  while  in  his  posses- 
sion. Within  forty  days  after  date  of  the  transfer  by  the 
sheriff,  the  assignee  must  enter  into  a  bond  to  the  people 
of  this  state  in  such  amount  as  may  be  fixed  by  a  judge 
of  the  superior  court  of  the  county,  or  city  and  county, 
in  which  an  inventory  in  accordance  with  the  provisions 
of  this  title  is  filed,  with  sufficient  sureties  to  be  approved 
by  such  judge,  and  conditioned  for  the  faithful  discharge 
of  the  trust  and  the  due  accounting  for  all  moneys  received 
by  the  assignee,  which  bond  must  be  filed  in  the  same 
office  with  the  inventory;  and  any  assignee  failing  to 
comply  with  the  provisions  of  this  section  may  be  removed 
by  the  above-named  superior  court  on  petition  of  the 
assignor  or  any  creditor,  and  his  successor  appointed  by 
such  court.     En.  March  21,  1872.     Am'd.  1883,  2;  1889,  83. 

Cal.Rep.Cit.   80,  543;   98,  410 ;   98,  411;   98,  414;   104,  398. 

3468.  Conditions  of  disposal  and  conversion.  Until  a 
verified  inventory  has  been  made  and  filed,  either  by  the 
assignor  or  assignee,  as  required  by  the  provisions  of  this 
title,  and  the  assignee  has  given  the  bond  required  by  the 
last  section,  such  assignee  has  no  authority  to  dispose  of 
the  property  of  the  estate,  or  any  part  of  it  (except  in  the 
case  of  perishable  property,  which  in  his  discretion  he 
may  dispose  of  at  any  time,  and  receive  the  proceeds  of 
sale  thereof) ;  nor  has  he  power  to  convert  the  property, 
or  the  proceeds  of  any  sale  of  perishable  property,  to  the 
purposes  of  the  trust.  Within  ten  days  after  the  filing  of 
his  bond,  the  assignee  must  commence  the  publication 
(and  such  publication  shall  continue  at  least  once  a  week 
for  four  weeks),  in  some  newspaper  published  in  the 
county,  or  city  and  county,  where  the  inventory  is  filed, 
of  a  notice  to  creditors  of  the  assignor,  stating  the  fact 
and  date  of  the  assignment,  and  requiring  all  persons 
having  claims  against  the  assignor  to  exhibit  them,  with 
the  necessary  vouchers,  and  verified  by  the  oath  of  the 
creditor,  to  the  assignee,  at  his  place  of  residence  or  busi- 
ness, to  be  specified  in  the  notice;  and  he  shall  also,  within 
ten  days  after  the  first  publication  of  said  notice,  mail  a 
copy  of  such  notice  to  each  creditor  whose  name  is  given 
In  the  instrument  of  assignment,  at  the  address  therein 


«55  ASSIGNMENTS.  §  3468 

given.  After  such  notice  is  given,  a  copy  thereof,  with 
affidavit  of  due  publication  and  mailing,  must  be  filed  with 
the  county  recorder  with  whom  the  inventory  has  been 
filed,  which  affidavit  shall  be  prima  facie  evidence  of  the 
facts  stated  therein.  At  any  time,  or  from  time  to  time, 
after  the  expiration  of  thirty  days  from  the  first  publication 
of  said  notice  (provided,  the  same  shall  also  have  been 
mailed  as  in  this  section  provided),  the  assignee  may.  in 
his  discretion,  declare  and  pay  dividends  to  the  creditors 
whose  claims  have  been  presented  and  allowed.  No  divi- 
dend already  declared  shall  be  disturbed  by  reason  of 
claims  being  subsequently  presented  and  allowed;  but  the 
creditor  presenting  such  claim  shall  be  entitled  to  a  divi- 
dend equal  to  the  per  cent  already  declared  and  paid, 
before  any  further  dividend  is  made;  provided,  however, 
that  there  be  assets  sufficient  for  that  purpose;  and  pro- 
vided, that  the  failure  to  present  such  claim  shall  not  have 
resulted  from  his  own  neglect,  and  he  shall  attach  to  such 
claim  a  statement,  under  oath,  showing  fully  why  the  same 
was  not  before  presented.  When  a  creditor  has  a 
mortgage  or  pledge  of  real  or  personal  property  of  the 
debtor,  or  a  lien  thereon,  for  executing  the  payment  of 
a  debt  owing  to  him  from  the  debtor,  and  shall  not  have 
conveyed,  released,  or  delivered  up  such  security  to  the 
sheriff,  as  provided  for  by  section  three  thousand  four 
hundred  and  forty-nine  of  this  code,  he  shall  be  admitted 
as  a  creditor  only  for  the  balance  of  the  debt  after  deduct- 
ing the  value  of  such  mortgage,  pledge,  or  lien,  to  be 
ascertained  by  agreement  between  him  and  the  assignee, 
or  by  a  sale  thereof,  to  be  made  in  such  manner  as  the 
superior  court  of  the  county  in  which  the  assignment  is 
made  shall  direct;  or  the  creditor  may  release  or  convey 
his  claim  to  the  assignee  upon  such  property,  and  be  ad- 
mitted to  pi'ove  his  whole  debt.  If  the  value  of  the  prop- 
erty exceeds  the  sum  for  which  it  is  so  held  as  security, 
the  assignee  may  release  to  the  creditor  the  debtor's 
right  of  redemption  thereon  on  receiving  such  excess;  or 
he  may  sell  the  property,  subject  to  the  claim  of  the 
creditor  thereon;  and  in  either  case  the  assignee  and 
creditor,  respectively,  shall  execute  all  deeds  and  writings 
necessary  or  proper  to  consummate  the  transaction.  If 
the  property  is  not  sold  or  released,  and  delivered  up,  the 


5§  3469-3473  ASSIGNMENTS,  656 

creditor  shall  not  be  allowed  to  prove  any  part  of  his  debt. 
En.  March  21,  1872.     Am'd.  1889,  83;   1895,  84. 
Cal.Rep.Cit.   80,   543. 

§  3469.  Accounting  of  assignee.  After  six  months  from 
the  date  of  an  assignment  for  the  benefit  of  creditors,  the 
assignee  may  be  required,  on  the  petition  of  any  creditor 
to  account  before  the  superior  court  of  the  county  where 
the  accompanying  inventory  was  filed,  in  the  manner 
prescribed  by  the  insolvent  laws  of  this  state.  En.  March 
21,  1872.     Am'd.  1883,  3. 

§  3470.  Property  exempt.  Property  exempt  from  execu- 
tion and  insurances  upon  the  life  of  the  assignor,  do  not 
pass  to  the  assignee  by  a  general  assignment  tor  the 
benefit  of  creditors,  unless  the  instrument  specially  men- 
tions them,  and  declares  an  intention  that  they  should 
pass  thereby.    En.  March  21,  1872. 

§  3471.  Commissions  of  assignee.  The  elected  assignee 
or  assignees  for  the  benefit  of  creditors  shall  be  entitled 
to  the  same  commissions  on  assignments  heretofore  and 
hereafter  made  as  are  allowed  by  law  to  the  assignees  in 
insolvency,  and  the  assignment  cannot  grant  more.  Such 
assignee  or  assignees  shall  also  be  entitled  to  all  neces- 
sary expenses  in  the  management  of  their  trust.  En.  March 
21,  1872.     Am'd.  1889,  84. 

Cal.Rep.Cit.   56,  628. 

3472.  Assignees  protected  for  acts  done  in  good  faith. 
An  assignee  for  the  benefit  of  creditors  is  not  to  be  held 
liable  for  his  acts,  done  in  good  faith,  in  the  execution  of 
the  trust,  merely  for  the  reason  that  the  assignment  is 
afterward  adjudged  void.    En.  March  21,  1872. 

§  3473.  Assent  of  creditor  necessary  to  modification  of 
assignment.  An  assignment  for  the  benefit  of  creditors 
which  has  been  executed  and  recorded  so  as  to  transfer 
the  property  to  the  sheriff,  or  a  transfer  by  the  sheriff  to 
the  elected  assignee  or  assignees  which  has  been  executed 
and  recorded,  cannot  afterwards  be  modified  or  canceled 
by  the  parties  without  the  consent  of  the  assignor  and  of 
every  creditor  affected  thereby.  En.  March  21,  1872.  Am'd. 
1889,  84. 

Cal.Rep.Cit.   78,   265;   98.  411;    98,  412;   lOS.  86;    108,  87. 


PART    III. 


NUISANCE. 

Title    I.     General   Principles,   §§  3479-3484. 
II.     Public  Nuisances,   §§  3490-3495. 
III.     Private   Nuisances,    §§  3501-3503. 


TITLE    I. 

GENERAL    PRINCIPLES. 

§  3479.  Nuisance,   what. 

§  3480.  Public   nuisance. 

§  3481.  Private  nuisance. 

§  3482.  What  is  not  deemed  a  nuisance. 

§  3483.  Successive   owners. 

S  3484.  Abatement  does  not  preclude  action. 

§  3479.  Nuisance,  what.  Anything  which  is  injurious  to 
health,  or  is  indecent  or  offensive  to  the  senses,  or  an 
obstruction  to  the  free  use  of  property,  so  as  to  interfere 
with  the  comfortable  enjoyment  of  life  or  property,  or 
tmlawfully  obstructs  the  free  passage  or  use,  in  the  cus- 
tomary manner,  of  any  navigable  lake,  or  river,  bay, 
stream,  canal,  or  basin,  or  any  public  park,  square,  street, 
or  highway  is  a  nuisance.  En.  March  21,  1872.  Am'd. 
1873-4,  268. 

Cal.Rep.Cit.     65,455;     66,147;      66,151;      67.546;     76,160; 
79,  348;      87,     93;   111,     30;   116,  399;   126,  673;   131,  502; 
136,     16. 

Nuisances,  what  are,  and  remedies  for:  See  Code  Civ. 
Proc,  sec.  731;    Pen.  Code,  sees.  370-371. 

Artesian  well  not  capped  so  as  to  prevent  waste  is:  See 
act  of  1877-8,  195,  in  Penal  Code  Appendix,* title  Artesian 
Wells. 

§  3480.  Public  nuisance.  A  public  nuisance  is  one  which 
affects  at  the  same  time  an  entire  community  or  neighbor- 
hood, or  any  considerable  number  of  persons,  although 
the  extent  of  the  annoyance  or  damage  inflicted  upon 
individuals  may  be  unequal.  En.  March  21,  1872.  Am'd. 
1873-4,   268. 

Cal.Rep.Cit.   66,  147;   109,  343;   111,  30;   116,  399;   126,  673. 


8§  3481-3490  PUBLIC    NUISANCES.  658 

Abating  public  nuisance:    Sees.  3494,  3495. 

Public  nuisance  not  legalized  by  lapse  of  time:  Sec. 
3490. 

Act  authorizing  district  attorney  to  abate  public  nuisance 
passed  March  15,  1899:  Stats.  1899,  p.  103. 

§  3481.  Private  nuisance.  Every  nuisance  not  Included 
in  the  definition  of  the  last  section  is  private.  En.  March 
21,  1872. 

§  3482.  What  is  not  deemed  a  nuisance.  Nothing  which 
is  done  or  maintained  under  the  express  authority  of  a 
statute  can  be  deemed  a  nuisance.    En.  March  21,  1872. 

Cal.Rep.Cit.  91,  255. 

§  3483.  Successive  owners.  Every  successive  owner  of 
property  who  neglects  to  abate  a  continuing  nuisance 
upon,  or  in  the  use  of,  such  property,  created  by  a  former 
owner,  is  liable  therefor  in  the  same  manner  as  the  one 
who  first  created  it.     En.  March  21,  1872. 

Cal.Rep.Cit.  72,  182. 

Nuisances,  what  are,  and  actions  for:  See  Code  Civ. 
Proc,  sec.  731. 

§  3484.  Abatement  does  not  preclude  action.  The  abate- 
ment of  a  nuisance  does  not  prejudice  the  right  of  any 
person  to  recover  damages  for  its  past  existence.  En. 
March  21,  1872. 

Nuisance:    Pen.  Code,  sees.  370-374. 


TITLE    II. 

PUBLIC    NUISANCES. 

§  3490.  Lapse  «f  time  does  not  legalize. 

§  3491.  Remedies  against  public  nuisance. 

§   3492.  Remedy   regulated,    how. 

§  3493.  Remedies  for  public  nuisance. 

§   3494.  How   abated. 

§  3495.  Same. 

§  3490.  Lapse  of  time  does  not  legalize.  No  lapse  of 
time  can  legalize  a  public  nuisance,  amounting  to  an 
actual  obstruction  of  public  right.    En.  March  21,  1872. 

Cal.Rep.Cit.   66,  152;   103,  238  ;   128,  235. 

Public  nuisance  defined:    See  sec.  3480. 


659  PniVATE    NUISANCES.  §§  3491-3501 

§  3491.  Remedies  against  public  nuisance.  The  reme- 
dies against  a  public  nuisance  are: 

1.  Indictment  or  information; 

2.  A  civil  action;  or, 

3.  Abatement.     En.  March  21,  1872.     Am'd.  1880,  1. 
Liability  for  maintaining  or  permitting  a  public  nuisance: 

See  Pen.  Code,  sec.  373a. 

Power  of  board  of  health  to  abate  in  San  Francisco: 
See  Pol.  Code,  sec.  3028. 

§  3492.  Remedy  regulated,  how.  The  remedy  by  indict- 
ment or  information  is  regulated  by  the  Penal  Code.  En. 
March  21,  1872.    Am'd.  1880,  i. 

Punishment  for  nuisance:    Pen.  Code,  sees.  370-374. 

§3493.     Remedies  for  public  nuisance.     A  private  person 

may   maintain   an   action   for   a   public   nuisance,   if   it   is 

specially    injurious    to    himself,    but    not    otherwise.      En. 

March  21,  1872. 

Cal.Rep.Cit.      54,  533;      87,  176;      89,     29;   103,  238;   107,  205; 
109,  343;   121,  513;   136,     15. 

§  3494.  How  abated.  A  public  nuisance  may  be  abated 
by  any  public  body  or  officer  authorized  thereto  by  law. 
En.  March  21,  1872. 

Act  of  March  15,  1899,  Stats.  1899,  p.  103,  authorized  the 
district  attorney  to  abate  public  nuisances. 

§  3495.  Same.  Any  person  may  abate  a  public  nuisance 
which  is  specially  injurious  to  him  by  removing,  or,  if 
necessary,  destroying  the  thing  which  constitutes  the  same, 
without  committing  a  breach  of  the  peace,  or  doing  un- 
necessary injury.     En.  March  21,  1872. 

TITLE    III. 

PRIVATE    NUISANCES. 

§  3501.     Remedies  for  private  nuisance. 
§  3502.     Abatement,  when  allowed. 
S  3503.      When  notice  is  required. 

§3501.  Remedies  for  private  nuisance.  The  remedies 
against  a  private  nuisance  are: 

1.  A  civil  action;  or, 

2.  Abatement.     En.  March  21.  1872. 

Civil  action  for  nuisance:  See,  generally,  ante,  sec.  3493. 


8§  3502,  3503  PRIVATE    NUISANCES.  660 

§  3502.  Abatement,  when  allowed.  A  person  Injured  by 
a  private  nuisance  may  abate  it  by  removing,  or,  if 
necessary,  destroying  the  thing  which  constitutes  the 
nuisance,  without  committing  a  breach  of  the  peace,  or 
doing  unnecessary  injury.'    En.  March  21,  1872. 

Cal.Rep.Clt.  126,   417. 

Abating  public  nuisance:  See  ante,  sees.  3494,  3495; 
act  of  March  15,  1899,  Stats.  1899,  p.  103. 

§3503.     When  notice  is  required.     Where  a  private  nuis- 
ance results  from  a  mere  omission  of  the  wrongdoer,  and 
cannot  be  abated  without  entering  upon  his  land,  reason- 
able notice  must  be  given  to  him  before  entering  to  abate 
En.  March  21,  1872. 


PART   IV. 


MAXIMS    OF    JURISPRUDENCE. 

§  3509.  The  maxims  of  jurisprudence  hereinafter  set 
forth  are  intended  not  to  qualify  any  of  the  foregoing 
provisions  of  this  code,  but  to  aid  in  their  just  application. 
En.  March  21,  1872. 

Cal.Rep.Cit.   88,  527;   123,  530. 

§  3510.     When   the   reason   of  a  rule   ceases,   so   should 
the  rule  itself.    En.  March  21,  1872. 
Cal.Rep.Cit.   88,   527. 

§  3511.  Where  the  reason  is  the  same,  the  rule  should 
De  the  same.    En.  March  21,  1872. 

§  3512.  One  must  not  change  his  purpose  to  the  injury 
of  another.    En.  March  21,  1872. 

§  3513.  Any  one  may  waive  the  advantage  of  a  law 
intended  solely  for  his  benefit.  But  a  law  established  for 
a  public  reason  cannot  be  contravened  by  a  private  agree- 
ment.    En.  March  21,  1872. 

Cal.Rep.Cit.      58,     98;      95,368;      99,  177  ;   108,  659 ;   113,  336 ; 
129,  359;   135,  119. 

§  3514.     One  must  so  use  his  own  rights  as  not  to  infringe 
upon  the  rights  of  another.    En.  March  21,  1872. 
Cal.Rep.Cit.  66,  151 ;   86,  382. 

§  3515.  He  who  consents  to  an  act  is  not  wronged  by  it. 
En.  March  21,  1872. 

Cal.Rep.Cit.   70,  468;   95,  544;   99,  235;   106,  151. 

§  3516.    Acquiescence  in  error  takes  away  the  right  of 
objecting  to  it.    En.  March  21,  1872. 
Cal.Rep.Cit.  106,  151. 

§  3517.  No  one  can  take  advantage  of  his  own  wrong. 
En.  March  21,  1872. 

Cal.Rep.Cit.   82,  83  ;   125,  471. 

§  3518.  He  who  has  fraudulently  dispossessed  himself 
of  a  thing  may  be  treated  as  if  he  still  had  possession. 
En.  March  21,  1872. 


§§3519-3531  MAXIMS    OF    JURISPRUDENCE.  662 

§3519.  He  who  can  and  does  not  forbid  that  which  is 
done  on  his  behalf  is  deemed  to  have  bidden  it.  En. 
March  21,  1872. 

§  3520.  No  one  should  suffer  by  the  act  of  another.  En. 
March  21,  1872. 

§  3521.     He  who  takes  the  benefit  must  bear  the  burden. 
En.  March  21,  1872. 
Cal.Rep.Cit.  106,  151. 

§  3522.    One  who  grants  a  thing  is  presumed  to  grant  also 
whatever  is  essential  to  its  use.     En.  March  21,  1872. 
Cal.Rep.Cit.  116,   591. 

§  3523.  For  every  wrong  there  is  a  remedy.  En.  March 
21,  1872. 

Cal.Rep.Cit.  117,   202. 

§  3524.  Between  those  who  are  equally  in  the  right,  or 
equally  in  the  wrong,  the  law  does  not  interpose.  En. 
March  21,  1872. 

Cal.Rep.Cit.   109.   583. 

§  3525.  Between  rights  otherwise  equal  the  earliest  is 
preferred.     En.  March  21,  1872. 

Cal.Rep.Cit.  54,  143. 

§  3526.  No  man  is  responsible  for  that  which  no  man 
can  control.     En.  March  21,  1872. 

§  3527.  The  law  helps  the  vigilant,  before  those  who 
sleep  on  their  rights.    En.  March  21,  1872. 

§  3528.     The  law  respects  form  less  than  substance.    En. 

March  21,  1872. 

Cal.Rep.Cit.     58,     98;     89,     41;     95,  368;   129,  246;   135,  615; 
136,   419. 

§  3529.  That  which  ought  to  have  been  done  is  to  be 
regarded  as  done,  in  favor  of  him  to  whom  and  against 
him  from  whom,  performance  is  due.    En.  March  21,  1872. 

Cal.Rep.Cit.   87,  256;   99,  69;   102,  91;   136,  419. 

§  3530.  That  which  does  not  appear  to  exist  is  to  be 
regarded  as  if  it  did  not  exist.    En.  March  21,  1872. 

Cal.Rep.Cit.   123,  439. 

§3531.  The  law  never  requires  impossibilities.  En. 
March  21,  1872. 


663  MAXIMS    OF    JURISPRUDENCE.  §§  3532-3543 

§  3532.     The   law   neither   does    nor   requires    idle   acts. 
En.  March  21,  1872. 

Cal.Rep.Cit.  58,  98;   83,  263;   95,  368;   96,  213;   130,  393. 

§  3533.     The  law  disregards  trifles.     En.  March  21,  1872. 

Cal.Rep.Cit.   70,  521. 

§  3534.     Particular  expressions  qualify  those  which  are 
general.    En.  March  21,  1872. 
Cal.Rep.Cit.  123,  530. 

§  3535.     Contemporaneous   exposition   is   in   general   the 
best.    En.  March  21,  1872, 
Cal.Rep.Cit.   79,   485;   118,   484. 

§  3536.     The  greater  contains  the  less.     En.   March  21, 
1872. 

§  3537.     Superfluity  does  not  vitiate.    En.  March  21,  1872. 

§  3538.    That   is    certain    which    can    be    made    certain. 
En.  March  21,  1872. 

Cal.Rep.Cit.  82,  500;   130,  95. 

§  3539.    Time  does  not  confirm  a  void  act.     En.  March 
21,  1872. 

§  3540.     The  incident  follows  the  principal,  and  not  the 
principal  the  incident.    En.  March  21,  1872. 
Cal.Rep.Cit.   110,   167. 

§  3541.     An  interpretation  which  gives  effect  is  preferred 
to  one  which  makes  void.    En.  March  21,  1872. 
Cal.Rep.Cit.  123,  143;   129,  226;   136,  104. 

§  3542.     Interpretation  must  be  reasonable.     En.  March 
21,  1872. 

Cal.Rep.Cit.   129,  226  ;   130,  94. 

§  3543.    Where  one  of  two  innocent  persons  must  suffer 

by  the  act  of  a  third,  he  by  whose  negligence  it  happened 

must  be  the  sufferer.     En.  March  21,  1872. 

Cal.Rep.Cit.     54,  143;     93,  356;   100,  621;   101,  411;   102,  105; 
122.  623. 


Approved,  March  21,  1872. 

NEWTON    BOOTH, 

Governor. 


664  CIVIL    CODE. 

The  amendments  which  took  effect  July  1,  1874,  and  are 
so  marked  at  the  end  of  each  section,  were  passed  by  act 
of  March  30,  1874,  the  closing  paragraph  of  which  is  as 
follows :  — 

"All  provisions  of  law  inconsistent  with  the  provisions 
of  this  act  are  hereby  repealed,  but  no  rights  acquired  or 
proceedings  taken  under  the  provisions  repealed  shall  be 
impaired  or  in  any  manner  affected  by  this  repeal;  and 
whenever  a  limitation  or  period  of  time  is  prescribed  by 
such  repealed  provisions  for  acquiring  a  right  or  barring 
a  remedy,  or  for  any  other  purpose,  has  begun  to  run 
before  this  act  takes  effect,  and  the  same  or  any  other 
limitation,  is  prescribed  by  this  act,  the  time  of  limitation 
which  shall  have  run  when  this  act  takes  effect  shall  be 
deemed  part  of  the  time  prescribed  by  this  act. 

"With  relation  to  the  laws  passed  at  the  present  session 
of  the  legislature,  this  act  must  be  construed  as  though 
it  had  been  passed  at  the  first  day  of  the  present  session, 
if  the  provisions  of  any  law  passed  at  the  present  session 
of  the  legislature  contravenes  or  is  inconsistent  with  the 
provisions  of  this  act,  the  provisions  of  such  law  must 
prevail. 

"  This  act  shall  take  effect  on  the  first  day  of  July,  one 
thousand  eight  hundred  and  seventy-four, 

"Approved,  March  30,  1874." 


APPENDIX. 


ACKNOWLEDGMENTS. 

An  act  to  legalize  certain  acknowledgments. 

[Approved  March  2,  1891;   Stats.  1891,  20.     Superseded  by 
Stats.  1897,  p.  29,  ch.  XXXII  to  the  same  effect.] 
See  sec.   1207,   ante,   curing  defective  acknowledgments 
executed  before  January  1,  1903. 

An  act  to  legalize  acknowledgments  of  certificates  in 
writing  required  by  section  two  of  an  act  entitled  "An 
act  to  provide  for  the  formation  of  chambers  of  com- 
merce, boards  of  trade,  mechanic  institutes,  and  other 
kindred  protective  associations,"  approved  March 
thirty-first,  eighteen  hundred  and  sixty-six,  heretofore 
made  or  taken,  and  to  legalize  all  certificates  hereto- 
fore made,  signed,  and  acknowledged,  and  filed  under 
section  two  of  said  act. 

[Approved  March  10,  1885;    1885,   55.] 

Section  1.  All  acknowledgments  heretofore  made  or 
taken  to  the  certificate  in  writing  required  by  section  two 
of  an  act  entitled  "An  act  to  provide  for  the  formation  of 
chambers  of  commerce,  boards  of  trade,  mechanic  insti- 
tutes, and  other  kindred  protective  associations,"  approved 
March  thirty-first,  eighteen  hundred  and  sixty-six,  whether 
proven  by  a  witness  or  otherwise,  and  all  certificates  in 
writing  heretofore  made,  signed,  and  acknowledged,  and 
filed  under  section  two  of  said  act,  though  said  certificates 
and  acknowledgments  be  defective  or  irregular,  are  hereby 
legalized  and  made  valid. 

Sec.  2.  This  act  shall  take  effect  and  be  In  force  from 
and  after  its  passage. 


6C6  APPENDIX. 

ANIMALS. 

An  act  to   prevent  combinations   to  obstruct  the  sale  of 
livestock  in  the  state  of  California. 

[Approved  February  27,  1893;  Stats.  1893,  30.] 

§  1.  Combinations  to  prevent  buying  livestock  prohibited. 

§  2.  Corporations  protiibited. 

§  3.  By-laws  of  corporations. 

§  4.  Trusts,   combinations  or  conspiracies. 

§  5.  Selling  livestock  at  any  market. 

§  6.  Punishment. 

Section  1.  It  shall  be  unlawful  for  any  two  or  more 
persons  or  corporations  to  combine  or  agree  together  to 
do  any  act  which  will,  in  any  respect,  prevent  any  person 
from  buying  livestock  at  any  place  in  this  state  from  any 
person  having  the  same  for  sale,  either  for  himself  or  as 
the  representative  or  agent  of  the  owner  of  the  same. 

Sec.  2.  It  shall  be  unlawful  for  any  corporation  or- 
ganized under  the  laws  of  this  state,  or  any  board  of 
directors  or  trustees,  or  stockholders,  or  agents,  or  officers 
of  any  corporation,  to  have,  pass,  or  enforce  any  rule, 
by-law,  or  regulation  whereby  any  officer,  stockholder, 
member,  shareholder,  agent,  servant  thereof,  or  any  other 
person  in  any  way  interested  in  or  connected  with  such 
corporation,  shall  in  any  respect  be  prohibited,  prevented, 
or  enjoined  from  buying  livestock  from  any  other  person 
having  such  livestock  for  sale,  either  as  owner  thereof,  or 
as  the  agent,  representative,  or  assistant  of  such  owner, 
in  any  market  in  this  state,  where  livestock  is  brought  to 
be  sold. 

Sec.  3.  Every  rule,  regulation,  or  by-law  of  any  cor- 
poration doing  business  in  this  state,  which  has  for  its 
purpose,  or  which,  directly  or  indirectly,  tends  to  prevent 
its  members  or  stockholders  from  freely  purchasing  live- 
stock from  any  person  lawfully  having  the  same  for  sale, 
upon  any  livestock  market  of  this  state,  are  hereby  de- 
clared to  be  contrary  to  the  public  policy  of  this  state,  and 
unlawful  and  void;  and  any  person  or  persons  who  shall 
attempt,  directly  or  indirectly,  to  enforce  any  such  rule, 
regulation  or  by-law,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  in  addition  to  the  penalties  prescribed  by 
this  act  shall  be  personally  liable  for  all  damages  which 


ANIMALS.  €67 

may  arise  from  the  enforcement  of  such  rule,  regulation, 
or  by-law,  to  any  person  damaged  thereby. 

Sec.  4.  No  trusts,  combinations,  or  conspiracies  shall 
be  organized  or  exist  in  this  state,  to  prevent  any  person 
or  persons,  or  corporation,  from  selling  livestock  on  com- 
mission, for  such  an  amount  of  commission  as  any  person 
engaged  in  the  business  may  see  fit  to  charge;  and  all 
rules,  regulations,  by-laws,  or  agreements  of  any  corpora- 
tion, association,  society,  or  combination  of  persons, 
whereby  any  such  corporation,  society,  association,  or  com- 
bination of  individuals  are  required  to  charge  not  less  than 
a  given  sum  for  commissions,  or  whereby  any  person  or 
commission  merchant  is,  in  any  respect,  restrained  from 
charging  less  than  a  certain  fixed  sum  for  his  services  as 
such  commission  merchant  in  the  sale  of  livestock,  are 
hereby  declared  to  be  contrary  to  the  public  policy  of  this 
state,  and  unlawful.  And  any  person  who  shall  enter  into 
any  such  trust,  combination,  or  conspiracy,  or  who  shall 
enforce  or  aid,  abet,  assist,  or  encourage  the  enforcement 
of  any  such  rule,  regulation,  by-law,  or  agreement,  shall  be 
liable  to  the  penalties  prescribed  by  this  act,  and  also  shall 
be  personally  liable  to  any  person,  individual,  society,  or 
corporation  who  may  be  injured  in  his  property  or  business 
thereby,  to  the  full  extent  of  the  injury  resulting  there- 
from. 

Sec.  5.  Whoever  shall,  directly  or  indirectly,  be  a  party 
to  any  combination,  conspiracy,  or  association,  which 
attempts,  directly  or  indirectly,  to  prevent  any  other  person 
from  freely  selling  livestock  at  any  market  in  this  state 
for  such  persons  as  see  fit  to  engage  his  services,  or  shall 
endeavor  to  compel,  directly  or  indirectly,  any  person  to 
charge  not  less  than  a  fixed  minimum  sum  for  services  in 
the  sale  of  livestock,  or  shall,  in  any  way,  hinder  or  pre- 
vent another  from  lawfully  selling  livestock  for  another, 
for  such  rate  of  commission  as  may  be  agreed  upon  by  the 
owner  of  the  livestock  and  the  commission  merchant,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  suffer  the  penalties 
prescribed  by  this  act,  and  shall  be  personally  liable  to 
any  one  aggrieved  thereby,  for  the  full  amount  of  any 
damage  sustained  by  such  person. 

Sec.  6.  Any  one  who  shall  violate  the  provisions  of  this 
act  shall  be  punished  by  a  fine  in  any  sum  not  less  than 


668  APPENDIX. 

live  hundred  dollars,  and  not  more  than  five  thousand 
dollars,  or  by  imprisonment  in  the  county  jail  not  exceed- 
ing one  year,  or  by  either  or  both,  in  the  discretion  of  the 
coui't,  and  shall  be  liable,  in  civil  action,  to  any  person 
aggrieved,  in  such  damages  as  he  or  she  may  have  sus- 
tained by  the  violation  of  this  act. 

Sec.  7.     This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 


APPRENTICES. 

An  act  relative  to  apprentices  and  masters. 

[Approved  April  3,  1876;  1875-6,  842;  amended  1880,  p.  28.] 

§    1.  Minors  may  be  apprenticed. 

§    2.'  By  whom. 

§    3.  Consent  of  minor  necessary, 

§    4,  Indentures. 

§    5.  Idem. 

§    6.  Idem— What  to  be  decided  before  they  take  effect. 

§    7.  Executor  may  bind. 

§    8.  Superior  court  may  bind. 

§    9.  Obligations  of  master. 

§  10.  Money  consideration  and  clothes. 

§  11.  Treatment  of   apprentices. 

§  12.  Age  to  be  stated. 

§  13.  Court  to  hear  complaints. 

§  14.  Court  may  discharge  apprentice. 

§  15.  Liability  of  master. 

§  16.  Action  against  apprentice  for  neglect,  misdemeanor,  etc 

§  17.  Court  may  dissolve  apprenticeship. 

§  18.  Liability  of  parties  to  indenture. 

§  19.  Misdemeanor. 

§  20.  When  master  removes  from  this  state. 

Minors  may  be  apprenticed. 

Section  1.  All  minors,  at  the  age  of  fourteen  years,  may 
be  bound  by  covenant  or  indenture,  in  conformity  with  the 
stipulations  herein  specified,  to  any  mechanical  trade  or 
art,  or  the  occupation  of  farming,  as  apprentices;  males  to 
the  age  of  twenty-one  years,  and  females  to  the  age  of 
eighteen. 
Minors  may  be  apprenticed,  by  whom. 

Sec.  2.  Minors,  at  or  above  the  age  of  fourteen  years, 
may  be  bound  by  the  father,  or  in  case  of  his  death,  in- 
competency, or  where  he  shall  have  willfully  abandoned 
his  family  for  one  year,  without  making  suitable  provision 
for  their  support,  or  has  become  an  habitual  drunkard, 
vagrant,    etc.,    then   by    their    mother,    or    by    their    legal 


APPRENTICES.  669 

guardian;  and  if  illegitimate,  they  may  be  bound  by  their 
mother;  and  if  they  have  no  parent  competent  to  act,  and 
no  guardian,  they  may  bind  themselves,  with  the  appro- 
bation of  the  superior  court  of  the  county  v^^here  they 
reside;  but  the  power  of  a  mother  to  bind  her  children, 
whether  legitimate  or  illegitimate,  shall  cease  upon  her 
subsequent  marriage,  and  shall  not  be  exercised  by  herself 
or  her  husband,  at  any  time  during  her  marriage,  without 
the  approval  of  the  superior  court  of  the  county  wherein 
she  or  he  resides.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  28  (Ban.  ed.  177).  Took  effect  im- 
mediately.] 

See  post,  sees.  6,  7,  8. 
Consent  of  minor  necessary. 

Sec.  3.     In  all  cases  the  consent  of  the  minor,  personally, 
is  required  as  a  pafty  to  the  covenant,  and  should  be  so 
expressed   in   the  indenture,   and   testified  by  his  or   her 
signing  the  same. 
Indentures. 

Sec.  4.  Indentures  shall  be  signed,  sealed,  and  delivered, 
in  duplicate  copies,  in  the  presence  of  all  the  parties  con- 
cerned, and  when  made  with  the  approbation  of  the 
superior  court,  or  the  judge  thereof,  in  vacation,  such 
approbation  shall  be  certified  in  writing,  indorsed  upon 
each  copy  of  the  indenture.  One  copy  of  the  indenture 
shall  be  kept  for  the  use  of  the  minor  by  his  parent  or 
guardian  (when  executed  by  them  respectively),  but  when 
made  with  the  approbation  of  the  court,  it  shall  be  de- 
posited in  the  safekeeping  of  the  clerk  of  said  court  for 
the  use  of  the  minor.  The  other  copy  shall  be  held  by  the 
master,  and  delivered  up  by  him  to  the  apprentice  at  the 
expiration  of  his  term  of  service.  [Amendment  approved 
April  9,  1880;  Amendments  1880,  28  (Ban.  ed.  178).  Took 
effect  immediately.] 
Same. 

Sec.  5.     No  indenture  of  apprentice,  made  in  pursuance 
of  this  act,  shall  bind  the  minor  after  the  death  of  his 
master,   but  the   apprenticeship   shall  be   thenceforth   dis- 
charged, and  the  minor  may  be  bound  out  anew. 
Same. 

Sec.  6.    Facts  of  incapacity,  desertion,  drunkenness,  vag- 
rancy, etc.,  shall  be  decided  in  the  said  court  by  a  jury. 


670  APPENDIX. 

before  the  indenture  shall  take  effect,  and  an  indorsement 
on  the  indenture,  under  seal  of  the  court,  that  the  charge  or 
charges  are  proved,  shall  be  sufficient  evidence  of  the 
mother's  power  to  give  such  consent;  but  if  the  jury  do 
not  find  the  charge  or  charges  to  be  true,  the  person  at 
whose  instance  such  proceedings  may  have  been  had  shall 
pay  all  costs  attending  the  same.  [Amendment  approved 
April  9,  1880;  Amendments  1880,  28  (Ban.  ed.  178).  Took 
effect  immediately.] 

Executor  may  bind. 

Sec.  7.  The  executor,  who  by  the  will  of  the  father  is 
directed  to  bring  up  his  child  to  a  trade  or  calling,  shall 
have  power  to -bind  such  by  indenture  in  like  manner  as 
the  father,  if  living,  might  have  done. 

Superior  court  may  bind. 

Sec.  8.  When  any  minor  who  is  poor,  homeless,  charge- 
able to  the  county,  or  an  outcast,  has  no  visible  means  of 
obtaining  an  honest  livelihood,  it  shall  be  lawful  for  the 
said  court  to  bind  such  apprentice  until,  if  a  male,  he 
arrives  at  the  age  of  twenty-one,  and  if  a  female,  to  the 
age  of  eighteen.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  28  (Ban.  ed.  178).  Took  effect  im- 
mediately.] 

Obligations  of  masters. 

Sec.  9.  It  shall  be  unlawful  for  any  master  to  remove 
an  apprentice  out  of  this  state;  and  in  all  indentures  by  the 
said  court  for  binding  out  an  orphan,  or  homeless  minor, 
as  an  apprentice,  there  shall  be  inserted,  among  other 
covenants,  a  clause  to  the  following  effect:  That  the 
master  to  whom  such  minor  shall  be  bound  shall  cause  the 
same  to  be  taught  to  read  and  write,  and  the  ground  rules 
of  arithmetic,  and  the  ratio  and  proportion,  and  shall  give 
him  requisite  instruction  in  the  dift'ereut  branches  of  his 
trade  or  calling,  and  at  the  expiration  of  his  term  of  service 
shall  give  him  two  full  new  suits  of  clothes  and  the  sum 
of  fifty  dollars,  gold;  and  if  a  female,  she  shall  nave  two 
fine  new  suits  of  clothes  and  the  sum  of  fifty  dollars,  gold; 
the  two  new  suits  in  either  case  to  be  worth  at  least  sixty 
dollars,  gold.  [Amendment  approved  April  9,  1880;  Amend- 
ments 1880,  29  (Ban.  ed.  178).    Took  effect  immediately.] 


APPRENTICES.  671 

Money    considerations    and    clothes    the    property    of    ap- 
prentice. 

Sec.  10.  All  considerations  of  money  or  clothes  paid  or 
allowed  by  the  master,  in  conformity  with  the  foregoing 
section,  are  the  sole  property  of  the  apprentice,  and  to 
whom  the  master  is  accountable  for  the  same,  and  he  shall 
pay  or  donate  into  the  hand  of  the  apprentice  alone. 

Treatment  of  apprentices. 

Sec.  11.  Parents  and  guardians  and  the  said  court  shall, 
from  time  to  time,  inquire  into  the  treatment  of  the  children 
bound  by  them,  respectively,  or  with  their  approbation; 
and  the  judges  of  the  said  courts  shall  be  responsible  for 
the  charge  of  indentured  apprentices  bound  by  the  appro- 
bation of  their  predecessors  in  office,  and  defend  them 
i'lom  all  cruelty,  neglect,  breach  of  contract,  or  misconduct 
on  the  part  of  their  masters.  [Amendment  approved 
April  9,  1S80;  Amendments  1880,  29  (Ban.  ed.  178).  Took 
effect  immediately.]  / 

Age  to  be  stated. 

Sec.  12.  The  age  of  every  apprentice  shall  be  inserted 
In  the  indenture,  and  all  indentures  entered  into  otherwise 
than  as  is  herein  provided  shall  be,  as  to  all  apprentices 
under  age,  utterly  void. 

Court  to  hear  complaints. 

Sec.  13.  The  superior  court  shall  hear  the  complaints 
of  apprentices,  who  reside  within  the  county,  against  their 
masters,  alleging  undeserved  or  immoderate  correction, 
Insufficient  allowance  of  food,  raiment,  or  lodging,  want 
of  instruction  in  the  different  branches  of  their  trade  or 
calling,  or  that  they  are  in  danger  of  being  removed  out 
of  the  state,  or  any  violation  of  the  indenture  of  appren- 
ticeship; and  the  court  may  hear  and  determine  such 
cases,  and  make  such  order  therein  as  will  relieve  the 
party  in  the  future.  [Amendment  approved  April  9,  1880; 
Amendments  1880,  29  (Ban.  ed.  179).  Took  effect  im- 
mediately.] 

Court  may  discharge  apprentice. 

Sec.  14.  The  superior  court  shall  havje  power,  where  cir- 
cumstances require  it,  to  discharge  an  apprentice  from  his 
apprenticeship,  and  in  case  any  money,  or  other  thing,  has 


b72  APPENDIX. 

been  paid  or  contracted  to  be  paid  by  either  party  in  rela- 
tion to  such  apprenticeship,  the  court  shall  make  such 
order  concerning  the  same  as  shall  seem  just  and  reason- 
able. If  the  apprentice  so  discharged  shall  have  beeo 
originally  bound  by  the  superior  court,  it  shall  be  the  duty 
of  the  court,  if  found  necessary,  again  to  bind  such  ap- 
prentice, if  under  age.  [Amendment  approved  April  9, 
1880;  Amendments  1880,  29  (Ban.  ed.  179).  Took  effect 
immediately.] 

Liability  of  master. 

Sec.  15.  Every  master  shall  be  liable  to  an  action  on 
the  indenture  for  the  breach  of  any  covenant  on  his  part 
therein  contained;  and,  all  damages  recovered  in  such 
action,  after  deducting  the  necessary  charges  in  prosecut- 
ing the  same,  shall  be  the  property  of  the  minor,  and  shall 
be  applied  and  appropriated  to  his  use  by  the  person  who 
shall  recover  the  same,  and  shall  be  paid  to  the  minor,  if 
a  male,  at  the  age  of  twenty-one  years,  and  if  a  female, 
at  the  age  of  eighteen  years.  If  such  action  is  not  brought 
during  the  minority  of  such  apprentice,  it  may  be  com- 
menced in  his  own  name  at  any  time  within  six  months 
after  coming  of  age,  but  not  later  than  two  years. 

Action  against  apprentice  for  neglect,  misdemeanor,   etc. 

Sec.  16.  An  apprentice  who  shall  be  guilty  of  any  gross 
misbehavior,  or  refusal  to  do  his  duty,  or  willful  neglect 
thereof,  shall  render  himself  liable  to  the  complaint  of  the 
master  in  the  superior  court  of  the  county  wherein  he 
resides,  which  complaint  shall  set  forth  the  circumstances 
of  the  case;  and  to  said  complaint  shall  be  attached  a 
citation,  signed  by  the  clerk  of  said  court,  requiring  the 
apprentice,  and  all  persons  who  have  covenanted  in  his 
behalf,  to  appear  and  answer  to  such  complaint,  which 
complaint  and  citation  shall  be  served  on  them  in  the 
usual  manner  of  serving  civil  process.  [Amendment  ap- 
proved April  9,  1880;  Amendments  1880,  29  (Ban.  ed.  179). 
Took  effect  immediately.] 
Court  may  dissolve  apprenticeship. 

Sec.  17.  The  court  shall  proceed  to  hear  and  determine 
the  cause,  and  after  a  full  hearing  of  the  parties,  or  if  the 
adverse  party  shall  neglect  to  appear  after  due  notice,  the 
court  may  render  judgment  or  decree  that  the  master  be 


APPRENTICES.  673 

discharged  from  the  contract  of  apprenticeship,  and  for 
the  costs  of  suit;  such  costs  to  be  recovered  of  the  parent 
or  guardian  of  the  minor,  if  there  be  any  who  signed  the 
indenture,  and  execution  therefor  issued  accordingly;  and 
if  there  be  no  parent  or  guardian  liable  for  such  costs, 
execution  may  be  issued  therefor  against  the  minor,  or  the 
amount  thereof  may  be  recovered  in  an  action  against  him 
after  he  shall  arrive  at  full  age. 

Liability  of  parties  to  indenture. 

Sec.  18.  The  parties  to  an  indenture  shall  also  be  liable 
to  the  master  in  an  action  on  the  indenture,  for  the  breach 
of  any  covenant  on  their  part  therein  contained,  com- 
mitted before  the  master  was  so  discharged  from  such 
indenture. 

Misdemeanor. 

Sec.  19.  It  shall  be  unlawful  for  any  person  to  entice, 
counsel,  or  persuade  to  run  away  any  apprentice,  or  em- 
ploy, harbor,  or  conceal  such,  knowing  said  apprentice  to 
be  a  runaway;  and  the  parties  so  offending  shall  be  guilty 
of  a  misdemeanor,  and  be  subject  to  fine  of  not  less  than 
fifty  and  not  more  than  one  hundred  dollars,  to  be  re- 
covered by  the  master  in  any  court  having  jurisdiction 
thereof. 

When  master  removes  from  this  state. 

Sec.  20.  Whenever  any  master  of  an  apprentice  shall 
wish  to  remove  out  of  this  state,  or  to  quit  his  trade  or 
business,  he  shall  appear  with  his  apprentice  before  the 
superior  court  of  the  proper  county,  and  if  the  court  be 
satisfied  that  the  master  has  done  justice  to  the  said  ap- 
prentice for  the  time  he  has  had  charge  of  the  same,  such 
court  shall  have  power  to  discharge  such  apprentice  from 
the  service  of  such  masted,  and  again  bind  him,  if  neces- 
sary, to  some  other  person.  [Amendment  approved  April  9, 
1880;  Amendments  1880,  30  (Ban.  ed.  179).  Took  effect 
immediately.] 

Sec.  21.  All  acts  and  parts  of  acts  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Sec.  22.    This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 
Civ.  Code— 29 


674  APPENDIX. 

BANKS    AND    BANKING. 

[See  acts  relating  to  this   subject  in  volume  of  General 
Laws,  title  Banks  and  Banking.] 

An  act  to  repeal  an  act  entitled  "An  act  concerning  cor- 
porations and  persons  engaged  in  the  business  of 
banking,"  approved  April  1,  1S76. 

[Approved  March  26,  1895;  Stats.  1895,  p.  77.] 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  That  an  act  entitled  "An  act  concerning  cor- 
porations and  persons  engaged  in  the  business  of  banking," 
approved  April  first,  eighteen  hundred  and  seventy-six,  be 
and  the  same  is  hereby  repealed. 

Sec.  2.  This  act  shall  take  effect  and  be  in  forcft  from 
and  after  its  passage. 

[This  act  was  also  repealed  in  1893,  Stats.  1893,  p.  112.] 

An  act  to  compel  savings  banks  to  publish  a  sworn  state- 
ment of  all  imclaimed  deposits. 
[Approved  March  23,  1893;    Stats.  1893,  p.  183.] 

Section  1.  The  cashier  or  secretary  of  every  savings 
bank,  savings  and  loan  society,  and  every  institution  in 
which  deposits  of  money  are  made  and  interest  paid 
thereon,  shall,  within  fifteen  days  after  the  first  day  of 
December,  in  the  year  one  thousand  eight  hundred  and 
ninety-three,  and  within  fifteen  days  of  the  first  day  of 
December  of  each  and  every  second  succeeding  year 
thereafter,  return  to  the  board  of  bank  commissioners  a 
sworn  statement,  showing  the  amount  standing  to  his 
credit,  the  last  known  place  of  residence  or  postoffice  ad- 
dress, and  the  fact  of  death,  if  known  to  said  cashier  or 
secretary,  of  every  depositor  wno  shall  not  have  made  a 
deposit  therein,  or  withdrawn  therefrom  any  part  of  his 
deposit,  or  any  part  of  the  interest  thereon,  for  a  period 
of  more  than  ten  years  next  preceding;  and  the  cashiers 
or  secretaries  of  such  savings  banks,  savings  and  loan 
societies,  and  institutions  for  deposit  of  savings,  shall  give 
notice  of  these  deposits  in  one  or  more  newspapers  pub- 
lished in  or  nearest  to  the  city,  city  and  county,  or  town 
where  such  banks  are  situated,  at  least  once  a  week  for 


BANKS    AND    BANKING.  675 

four  successive  weeks,  the  cost  of  such  publications  to  be 
paid  pro  rata  out  of  said  unclaimed  deposits;  provided, 
however,  that  this  act  shall  not  apply  to  or  affect  the 
deposit  made  by  or  in  the  name  of  any  person  known  to 
the  said  cashier,  or  secretary  to  be  living,  any  deposit 
which,  with  the  accumulations  thereon,  shall  be  less  than 
fifty  dollars. 

Sec.  2.  The  board  of  bank  commissioners  shall  incor- 
porate in  their  subsequent  report  each  return  which  shall 
have  been  made  to  them,  as  provided  in  section  one  of 
this  act. 

Sec.  3.  Any  cashier  or  secretary  of  either  of  the  bank- 
ing institutions  mentioned  in  section  one  of  this  act 
neglecting  or  refusing  to  make  the  sworn  statement  re- 
quired by  said  section  one,  shall  be  guilty  of  a  mis- 
demeanor. 

An  act  to  compel  all  depositaries  of  money  and  commercial 
banks  to  publish  a  sworn  statement  of  all  unclaimed 
deposits. 

[Approved  February  25,  1S97,  p.  27.] 

§  1.     Sworn  statement,  duty  to  file. 
§  2.      Bank  commissioners  to  report. 
I  3.      Misdemeanor. 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 
Section  1.  The  president,  cashier,  or  secretary  of  every 
bank,  depositary,  society,  or  institution  of  every  kind  or 
character  which  receive  money  on  deposit,  or  in  which  de- 
posits of  money  are  made,  and  upon  which  deposits  no  in- 
terest is  paid,  shall,  within  fifteen  days  after  the  first  day 
of  June  in  the  year  one  thousand  eight  hundred  and  ninety- 
seven,  and  within  fifteen  days  of  the  first  day  of  June  of 
each  and  every  second  succeeding  year  thereafter,  return 
to  the  board  of  bank  commissioners,  a  sworn  statement 
showing  the  amount  standing  to  his  credit,  the  last  known 
place  of  residence  or  postoffice  address,  and  the  fact  of 
death,  if  known  to  said  president,  cashier,  or  secretary, 
of  every  depositor  of  such  bank,  depositary,  society,  or 
institution,  who  shall  not  have  made  a  deposit  therein, 
or  withdrawn  therefrom  any  part  of  his  deposit  or  funds 


676  APPENDIX. 

to  his  credit  therein,  for  a  period  of  more  than  ten  years 
next  preceding;  and  the  presidents,  cashiers,  or  secretaries, 
of  all  such  banks,  depositaries,  societies,  and  institutions, 
which  receive  money  on  deposit  or  in  which  deposits  of 
money  is  made,  shall  give  notice  of  these  deposits,  in 
one  or  more  newspapers  published  in  or  nearest  to  the  city, 
city  and  county,  or  town  where  such  banks,  depositaries, 
societies,  or  institutions  are  situated,  at  least  once  a 
week  for  four  successive  weeks,  the  cost  of  such  publica- 
tions to  be  paid  pro  rata  out  of  said  unclaimed  deposits; 
provided,  however,  that  this  act  shall  not  apply  to  or 
affect  the  deposit  made  by  or  in  the  name  of  any  person 
known  to  the  said  presidents,  cashiers,  or  secretaries,  to 
belong,  or  any  deposit  which,  with  the  accumulations 
thereon,  shall  be  less  than  fifty  dollars. 

Sec.  2.  The  board  of  bank  commissioners  shall  incor- 
porate in  their  subsequent  report  each  return  which  shall 
have  been  made  to  them,  as  provided  in  section  one  of 
this  act. 

Sec.  3.  Any  president,  cashier,  or  secretary  of  either 
of  the  banks,  depositaries,  societies,  or  institutions  named 
in  section  one  of  this  act,  neglecting  or  refusing  to  make 
the  sworn  statement  required  by  said  section  one,  shall 
be  guilty  of  a  misdemeanor. 

An  act  providing  for  the  dissolution  and  winding  up  of 
savings  banks,  trust  companies,  and  banks  of  deposit, 
and  providing  for  the  disposition  of  all  funds  deposited 
therein  and  not  claimed  within  five  years  after  such 
banks  have  ceased  to  do  business,  or  after  the  com- 
mencement of  proceedings  to  dissolve. 
[Approved  March  31,  1891;    Stats.  1891,  p.  271.] 

§  1.  Right  to  dissolve  savings  banks,  etc. 

§  2.  Dissolved  savings  bank  fund. 

§  3.  How  drawn  upon. 

§  4.  When   same  escheats. 

§  5.  Attorney-general  empowered  to  bring  actions. 

§  6.  Investment  of  funds. 

§  7.  Bonds  purchased. 

§  8.  To  sell  bonds  to  meet  payments. 

Section  1.  That  any  savings  bank  or  trust  company  or 
bank  of  deposit  heretofore  created  or  which  may  be  here- 
after created  shall  have  the  right,  on  application  of  the 


BANKS    AND     BANKING.  677 

stockholders  or  members  to  the  superior  court  of  the 
county  wherein  its  principal  place  of  business  is  situated, 
to  dissolve  said  corporation  in  the  manner  provided  for 
in  title  six,  part  three,  of  the  Code  of  Civil  Procedure. 

Sec.  2.  It  is  hereby  made  the  duty  of  every  person  or 
corporation  holding  funds  of  any  savings  bank  or  trust 
company  or  bank  of  deposit,  at  the  end  of  five  years  from 
and  after  such  bank  has  ceased  to  receive  deposits  or  do 
business,  to  pay  the  same  into  the  state  treasury,  which 
money  shall  be  held  in  the  state  treasury  in  a  fund  which 
is  hereby  designated  as  "  the  dissolved  savings  bank 
fund";  and  at  the  same  time  it  shall  be  the  duty  of  such 
person  or  corporation  to  furnish  to  the  state  controller  a 
list  of  the  names  of  all  depositors  to  whom  said  moneys 
belong  or  to  whom  said  bank  owes  the  same. 

Sec.  3.  The  money  in  said  "  the  dissolved  savings  bank 
fund "  may  be  drawn  out  on  the  warrants  of  the  state 
controller,  issued  on  proofs  of  ownership,  approved  and 
allowed  by  the  state  board  of  examiners. 

Sec.  4.  All  moneys  paid  into  the  said  "  the  dissolved 
savings  bank  fund "  uncalled  for  within  five  years  after 
being  paid  in  shall  escheat  to  the  state,  and  thereafter 
only  drawn  out  in  such  manner  as  now  provided  for  by  law 
for  the  estates  of  deceased  persons  escheated  to  tlys  state. 

Sec.  5.  That  any  person  or  corporation  failing  to  comply 
with  the  provisions  of  this  act  shall  be  liable  to  the  state 
of  California  for  the  amount  of  money  so  retained  by  them 
contrary  to  the  provisions  of  the  first  four  sections  of 
this  act;  and  the  attorney-general  of  this  state  is  hereby 
authorized,  empowered,  and  directed  to  bring  action,  in 
the  name  of  the  people  of  the  state  of  California,  in  such 
manner  and  upon  the  same  terms  as  now  provided  for 
escheated  estates,  to  recover  judgment  for  said  money, 
and  when  so  recovered,  to  be  paid  into  the  state  treasury 
and  held  subject  to  the  provisions  of  this  act;  provided, 
that  said  fund  shall  be  liable  for  the  expense  of  the 
recovery  of  the  same,  to  be  paid  out  upon  demands  audited 
by  the  state  board  of  examiners. 

Sec.  6.  Whenever  and  as  often  as  there  is  in  the  state 
treasury  to  the  credit  of  the  said  "  the  dissolved  savings 
bank  fund "  the   sum  of  ten   thousand   dollars,   the   state 


678  APPENDIX. 

board  of  examiners  must  invest  the  same  in  civil  funded 
bonds  of  this  state,  or  in  bonds  of  the  United  States,  or  in 
bonds  of  the  several  counties  of  this  state;  the  investments 
to  be  made  in  such  manner  and  upon  such  terms  as  the 
board  shall  deem  for  the  best  interests  of  the  said  "  the 
dissolved  savings  bank  fund";  provided,  that  no  bonds  of 
any  counties  shall  be  purchased,  of  which  the  debt,  debts, 
or  liabilities  at  the  time  exceed  fifteen  per  cent  of  the 
assessed  value  of  the  taxable  property  of  said  county. 

Sec.  7.  All  bonds  purchased  by  the  board  under  the 
provisions  of  this  act  must  be  delivered  to  tne  state 
treasurer,  who  shall  keep  them  as  a  portion  of  said  "  the 
dissolved  savings  bank  fund,"  the  interest  upon  such  bonds 
to  be  placed  by  him  to  the  credit  of  said  fund. 

Sec.  8.  Whenever  the  moneys  on  hand  in  the  state 
treasury,  to  the  credit  of  the  said  "  the  dissolved  savings 
bank  fund  "  is  not  sufficient  to  pay  the  claims  allowed  by 
the  state  board  of  examiners  against  said  fund,  it  shall  be 
the  duty  of  said  board  to  sell  such  bonds  belonging  to 
said  fund  as  they  may  deem  proper,  for  the  purpose  of 
providing  funds  for  the  payment  of  such  claims  so  allowed 
by  them. 

Sec.  9.  This  act  shall  take  effect  from  and  after  its 
passage.* 


BENEFIT    SOCIETIES. 

An  act  relating  to  mutual  beneficial  and  relief  associations. 

[Approved   March   28,   1874;    1873-4,   745.     Amended   1880, 
25;  1901,  6.] 

§  1.  Mutual  beneficial  and  relief  associations. 

§  2.  How  formed. 

§   3.  Powers. 

§  4.  Idem. 

§   5.  By-laws. 

§  6.  Old  associations. 

Mutual  beneficial  and  relief  associations. 

Section  1.  Associations  may  be  formed  for  the  purpose 
of  paying  to  the  nominee  of  any  member,  a  sum  upon  the 
death  of  said  member,  not  exceeding  three  dollars  for 
each    member    of   such    asociation.      No    such    association 


BENEFIT    SOCIETIES.  679 

shall  exceed  in  number  three  thousand  persons.     [Amend- 
ment approved  February  14,  1901,  Stats.  1901,  p.  6.] 
How  formed. 

Sec.  2.  Such  association  shall  be  formed  by  filing  a 
verified  certificate  in  the  oflfice  of  the  clerk  of  the  county 
'  in  which  the  principal  place  of  business  shall  be  situated, 
and  filing  a  like  certificate  in  the  oflTice  of  the  secretary 
of  the  state.  Such  certificate  shall  state  the  general  ob- 
jects of  the  association,  its  principal  place  of  business,  and 
the  names  of  the  officers  selected  to  hold  office  for  the  first 
three  months,  and  shall  be  signed  by  said  officers,  and 
verified  by  at  least  three  of  them. 
Powers. 

Sec.  3.  Said  associations,  upon  the  death  of  each  mem- 
ber, may  levy  an  assessment  upon  each'  member  living 
at  the  time  of  the  death,  not  exceeding  three  dollars  for 
each  member,  and  collect  the  same,  and  pay  the  same  to 
the  nominee  of  such  deceased,  and  may  also  provide  the 
payment  of  such  annual  payments  of  members  as  may  be 
deemed  best,  such  annual  assessment  upon  any  one 
member  not  to  be  raised  above  the  annual  assessment 
established  at  the  time  such  member  joins  such  associa- 
tion. 
Idem. 

Sec.  4.  Such  association,  by  its  name,  may  sue  and  be 
sued,  and  may  loan  such  funds  as  it  may  have  on  hand, 
and  may  own  sufficient  real  estate  for  its  business  pur- 
poses, and  such  other  real  estate  as  it  may  be  necessary 
to  purchase  on  foreclosure  of  its  mortgages;  provided, 
such  real  estate  so  obtained  through  foreclosure  shall  be 
sold  and  conveyed  within  five  years  from  the  day  title  is 
obtained,  unless  the  superior  court  of  the  proper  county 
shall,  upon  petition  and  good  cause  shown,  extend  the 
time.  [Amendment  approved  April  6,  1880;  Amendments 
1880,  25  (Ban.  ed.  128).  Took  effect  immediately.] 
By-laws. 

Sec.  5.  Such  association  may  make  such  by-laws,  not 
inconsistent  with  the  laws  of  this  state,  as  may  be  neces- 
sary for  its  government,  and  for  the  transaction  of  its 
business,  and  shall  not  be  subject  to  the  provisions  of  the 
general  insurance  laws. 


680  APPENDIX. 

Old  associations. 

Sec.  6.  All  associations  heretofore  formed  for  the  objects 
contemplated  by  this  act,  and  now  in  operation,  may  avail 
themselves  of  its  provisions  by  filing  the  certificate  pro- 
vided for  in  section  one;  provided,  that  such  society  shall 
not  have  greater  membership  than  three  thousand.  * 

Sec.  7.    This  act  shall  take  effect  immediately. 


BOARDS  OP  TRADE:     See  post,  title  Chambers  of  Com- 
merce. 


BONDS. 

An  act  to  facilitate  the  giving  of  bonds  required  by  law. 
[Approved  March  12,  1885;   1885,  114.] 

§  1.  Incorporation  for  giving  bonds. 
§  2.  When  corporation  not  accepted. 
$  3.     Duty  of  insurance  commissioner. 

Incorporations  for  giving  bonds. 

Section  1.  Whenever  any  person  who .  now  or  here- 
after may  be  required  or  permitted  by  law  to  make, 
execute,  and  give  a  bond  or  undertaking,  with  one  or  more 
sureties,  conditioned  for  the  faithful  performance  of  any 
duty,  or  for  the  doing  or  not  doing  of  anything  in  said 
bond  or  undertaking  specified,  any  head  of  department, 
board,  court,  judge,  officer,  or  other  person  who  is  now 
or  shall  hereafter  be  required  to  approve  the  sufficiency 
of  any  such  bond  or  undertaking,  or  the  sureties  thereon, 
may  accept  as  sole  and  sufficient  surety  on  such  bond  or 
undertaking,  any  corporation  incorporated  under  the  laws 
of  any  state  of  the  United  States  for  the  purpose  of  making 
or  guaranteeing  bonds  and  undertakings  required  by  law, 
and  which  shall  have  complied  with  all  the  requirements 
of  the  laws  of  this  state  regulating  the  admission  of  such 
corporation  to  transact  such  business  in  this  state;  and 
all  such  corporations  are  hereby  vested  with  full  power 
and  authority  to  make  and  guarantee  such  bonds  and 
undertakings,  and  shall  be  subject  to  all  the  liabilities  and 
entitled  to  all  the  rights  of  natural  persons  sureties. 


BONDS— BUILDING  AND  LOAN  ASSOCIATIONS.  681 

When  corporation  not  accepted. 

Sec.  2.  It  is  further  provided  that  the  guaranty  of  any 
such  company  shall  not  be  accepted  by  heads  of  depart- 
ments or  others,  as  provided  in  section  one  of  this  act, 
whenever  its  liabilities  shall  exceed  its  assets,  as  ascer- 
tained in  the  manner  provided  in  section  three  of  this  act. 
Duty  of  insurance  commissioner. 

Sec.  3.  Whenever  the  liabilities  of  any  such  company 
shall  exceed  its  assets,  the  insurance  commissioner  shall 
require  the  deficiency  to  be  paid  up  within  sixty  days,  and 
if  it  is  not  so  paid  up,  then  he  shall  issue  a  certificate 
fahowing  the  extent  of  such  deficiency,  and  he  shall  publish 
the  same  once  a  week  for  three  weeks  in  a  daily  San 
Francisco  paper,  and  thenceforth,  and  until  such  deficiency 
is  paid  up,  such  company  shall  not  do  business  under  the 
provisions  of  this  act.  And  in  estimating  the  condition  of 
any  such  company,  under  the  provisions  of  this  act,  the 
commissioner  shall  allow  as  assets  only  such  as  are  au- 
thorized under  existing  laws  at  the  time,  and  shall  charge 
as  liabilities,  in  addition  to  eighty  per  cent  of  tne  capital 
stock,  all  outstanding  indebtedness  of  the  company,  and  a 
premium  reserve  equal  to  fifty  per  centum  of  the  premiums 
charged  by  said  company  on  all  risks  then  in  force. 
Nothing  herein  contained  shall  apply  to  bonds  given  in 
criminal  cases. 

Sec.  4.    This  act  shall  take  effect  immediately. 


BUILDING    AND    LOAN    ASSOCIATIONS. 

An  act  creating  a  board  of  commissioners  of  the  building 

and  loan  associations  and  prescribing  their  duties  and 

powers. 

[Approved  March  23,  1893;   Stats.  1893,  p.  229.     Amended 

1895,  103.] 

§    1.  Board  of  commissioners. 

§    2.  Salaries. 

§    3.  Office,   rent,   stationery,  etc 

§    4.  Bond. 

§    5.  Duties  of — Report. 

§    6.  Visiting  associations. 

§    7.  Duties  of  associations. 

§    8.  Powers  of. 

§    9.  Duty  of  attorney-general — Receivers. 

§  10.  Failure  to  report  to  attorney-generaL 

§  11.  Schedule  of  property. 


682  APPENDIX. 

S  12.  Examining  accounts  of  receivers. 

§  13.  Investigation  of  affairs. 

§  14.  Violation  of  laws  relating  to  corporations. 

§  15.  Associations  to  pay  as.sessment. 

§  16.  How  collections  may  be  enforced. 

§  17.  Licenses.  , 

§  18.  Report   to  commissioners. 

§  19.  Withdrawal   of   stockholders. 

§  20.  "Building  and  loan  association,"  what  Includes. 

Section  1.  All  building  and  loan  associations  heretofore 
or  hereafter  incorporated  under  the  laws  of  this  state,  or 
any  other  state  or  territory,  or  those  of  any  foreign  country, 
and  doing  business  in  this  state,  shall  be  subject  to  the  ex- 
amination and  supervision  of  a  board  of  commissioners  of 
loan  associations,  which  board  shall  consist  of  two  commis- 
sioners, each  of  whom  shall  be  an  expert  of  accounts,  and 
shall  be  appointed  by  the  governor,  within  thirty  days  after 
the  passage  of  this  act,  to  hold  oflace  for  the  period  of  four 
years,  and  until  their  successors  are  appointed  and 
qualified. 

Sec.  2.  The  commissioners  shall  each  receive  a  salary 
of  twenty-four  hundred  dollars  per  annum  and  necessary 
traveling  expenses,  not  to  exceed  for  the  two  commis- 
sioners and  their  secretary,  the  sum  of  seven  hundred 
dollars  per  annum.  Said  commissioners  are  hereby  au- 
thorized to  appoint  a  secretary  at  a  salary  not  to  exceed 
twelve  hundred  dollars  per  annum,  who  shall  have  power 
to  examine  the  books  and  affairs  of  the  associations,  the 
same  as  the  commissioners.  All  said  salaries  and  traveling 
expenses  shall  be  audited  by  the  state  controller  and  paid 
in  the  same  manner  as  the  salaries  of  other  state  officers. 
[Amendment  approved  March  26,  1895;    Stats.  1895,  103.] 

Sec.  3.  The  commissioners  shall  have  their  office  in  San 
Francisco,  which  ofiice  shall  be  kept  open  for  business 
every  business  day,  and  during  such  hours  as  are  commonly 
observed  by  the  banks  of  that  city  as  banking  hours.  They 
shall  procure  rooms  for  their  office  at  a  monthly  rental 
not  exceeding  forty  dollars.  They  may  also  provide  fuel, 
stationery,  printing,  and  other  necessary  conveniences 
connected  with  their  office,  not  to  exceed  an  aggregate  cost 
of  four  hundred  dollars  per  annum.  All  expenses  author- 
ized in  this  section  shall  be  audited  and  paid  in  the  same 
manner  as  the  salary  of  the  commissioners.  [Amendment 
approved  March  26,  1895;   Stats.  1895,  p.  103.] 


BUILDING    AND    LOAN    ASSOCIATIONS.  683 

Sec.  4.  The  commissioners,  before  entering  upon  the 
duties  of  their  office,  must  each  execute  an  official  bond  in 
the  sum  of  five  thousand  dollars,  and  take  the  oath  of  office 
as  prescribed  by  the  Political  Code  for  state  officers  in 
general.  The  secretary  appointed  by  said  commissioners 
shall  execute  a  bond  in  the  sum  of  two  thousand  dollars, 
and  take  the  oath  of  office  as  prescribed  by  said  Political 
Code.  [Amendment  approved  March  26,  1895;  Stats.  1895, 
p.  103.] 

Sec.  5.  The  duties  of  the  commissioners  of  building  and 
loan  associations  shall  be  to  furnish  all  corporations 
legally  authoriiEed  to  transact  the  business  of  a  building 
and  loan  association  within  this  state  a  license  authorizing 
them  to  transact  the  business  of  a  building  and  loan 
association  for  one  year  from  the  date  of  said  license;  to 
receive  and  place  on  file  in  their  office  the  annual  reports 
required  to  be  made  by  building  and  loan  associations  by 
this  act;  to  supply  each  association  with  blank  forms  and 
such  statements  as  the  commissioners  may  require;  to 
make,  on  or  before  the  first  day  of  October  of  each  year, 
a  tabulated  report  to  the  governor  of  this  state,  showing 
the  condition  of  all  institutions  examined  by  them,  with 
such  recommendations  as  they  may  deem  proper,  accom- 
panied by  a  detailed  statement,  verified  by  oath,  of  all 
moneys  received  and  expended  by  them  since  their  last 
report.  [Amendment  approved  March  26,  1895;  Stats.  1895, 
p.  103.] 

Sec.  6.  The  commissioners  shall  visit,  once  in  every 
year,  and  as  much  oftener  as  they  may  deem  expedient, 
every  building  and  loan  association  doing  business  in  this 
state.  At  such  visits,  they  shall  have  free  access  to  the 
vaults,  books,  and  papers,  and  shall  thoroughly  inspect  and 
examine  all  the  affairs  of  each  of  said  corporations,  and 
make  such  inquiries  as  may  be  necessary  to  ascertain  its 
condition  and  ability  to  fulfill  all  its  engagements,  and 
whether  it  has  complied  with  the  provisions  of  law  govern- 
ing such  associations;  they  shall  preserve  in  a  permanent 
form  a  full  record  of  their  proceedings,  including  a  state- 
ment of  the  condition  of  each  of  said  corporations,  which 
shall  be  open  to  the  inspection  of  the  public  during  their 
■office  hours. 

"^ec.  7.     To  facilitate  the  examinations  of  the  commis- 


684  APPENDIX. 

sioners,  as  specified  in  the  foregoing  section,  every  associa- 
tion shall  keep  a  book  of  records,  written  in  ink,  showing 
the  appraised  values  of  the  real  estate  security  heki  in 
connection  with  each  loan,  and  signed  in  each  case  by  the 
appraiser  or  officer  or  committee  of  the  association  making 
such  estimate  value.  The  commissioners  £ha,ll  have 
power  to  order  a  revaluation  of  the  securities  of  any  build- 
ing and  loan  association  when  they  deem  it  necessary,  and 
may,  for  that  purpose,  appoint  local  appraisers  at  the 
expense  of  such  association,  the  total  expense  of  such 
appraisement  not  to  exceed  two  dollars  and  fifty  cents  for 
each  property  examined  and  appraised,  ^ach  appraiser 
shall  make  a  sworn  report  to  the  commissioners  of  the 
appraised  values  of  all  property  examined.  [Amendment 
approved  March  26,  1895;   Stats.  1895,  p.  104.] 

Sec.  8.  Either  of  the  commissioners  may  summon  all 
trustees,  oflttcers,  or  agents  of  any  such  corporation,  and 
&uch  other  witnesses  as  he  thinks  proper,  in  relation  to 
the  affairs,  transactions,  and  condition  of  the  corporation, 
and  for  that  purpose  may  administer  oaths;  and  whoever 
refuses,  without  justifiable  cause,  to  appear  and  testify, 
when  thereto  required,  or  obstructs  a  commissioner  in  the 
discharge  of  his  duty,  shall  be  punished  by  a  fine  not 
exceeding  one  thousand  dollars,  or  imprisonment  not  ex- 
ceeding one  year,  or  by  both  such  fine  and  imprisonment. 

Sec.  9.  If  the  commissioners,  upon  examination  of  any 
corporation  under  their  supervision,  they  find  that  such  cor- 
poration has  been  violating  the  provisions  of  law  governing 
such  associations,  or  is  conducting  its  business  in  an 
unsafe  manner,  such  as  to  render  its  further  proceeding 
hazardous  to  the  public  or  to  those  having  fundg  in  its 
custody,  they  shall  notify  the  attorney-general  of  such 
facts,  and  the  attorney-general,  in  his  discretion,  may 
apply  to  the  judge  of  the  superior  court  of  the  county  in 
"Which  such  corporation  is  doing  business  to  issue  an  in- 
junction restraining  such  corporation,  in  whole  or  in  part, 
from  further  proceeding  with  its  business  until  a  hearing 
can  be  had.  Such  judge  may,  in  such  application,  issue 
such  injunction,  and,  after  a  full  hearing,  may  aissolve  or 
modify  it,  or  make  it  perpetual,  and  may  make  such  orders 
and   decrees,   according  to   the   course   of  proceedings   in 


BUILDING    AND     LOAN    ASSOCIATIONS.  685 

equity,  to  restrain  or  prohibit  the  further  prosecution  of 
the  business  of  the  corporation,  as  may  be  needful  in  the 
premises;  and  may  appoint  one  or  more  receivers  to  take 
possession  of  its  property  and  effects,  subject  to  such 
directions  as  may  from  time  to  time  be  prescribed  by  the 
court. 

Sec.  10.  And  if  either  of  the  commissioners,  having 
knowledge  of  the  insolvent  condition,  or  any  violation  of 
law,  or  unsafe  practice  of  any  association  under  their 
supervision,  such  as  renders,  in  their  opinion,  the  conduct 
of  its  business  hazardous  to  its  shareholders  or  depositors, 
and  shall  fail  to  report  the  same  in  writing  to  the  attorney- 
general,  as  required  by  this  act,  then  such  commissioner, 
on  conviction  thereof,  shall  be  punished  by  a  tine  of  not 
less  than  five  thousand  dollars  nor  more  than  ten  thousand 
dollars,  or  by  imprisonment  in  the  county  jail  not  less  than 
one  year  nor  more  than  two  years,  or  by  both  such  fine  and 
imprisonment;  and  his  ofiice  shall  be  declared  vacant  by 
the  governor,  and  a  successor  appointed  to  fill  his  un- 
expired term. 

Sec.  11.  When  receivers  are  so  appointed,  the  secretary 
of  the  corporation  shall  make  a  schedule  of  all  its  property, 
and  its  secretary,  board  of  investment,  and  other  oflicers 
transferring  its  property  to  the  receivers,  shall  make  oath 
that  said  schedule  sets  forth  all  the  property  which  the 
corporation  owns,  or  is  entitled  to.  The  secretary  shall 
deliver  said  schedule  to  the  receivers,  and  a  copy  thereof 
to  the  commissioners,  who  may  at  any  time  examine,  under 
oath,  such  secretary,  board  of  investment,' or  other  oflicers, 
in  order  to  determine  whether  or  not  all  the  property 
which  the  corporation  owns,  or  is  entitled  to,  has  been 
transferred  to  the  receivers. 

Sec.  12.  The  commissioners,  or  one  of  them,  shall,  at 
least  once  in  each  year,  and  as  much  oftener  as  they  may 
deem  expedient,  examine  the  accounts  and  doings  of  all  such 
receivers,  and  shall  carefully  examine  and  report  upon  all 
accounts  and  reports  of  receivers  made  to  the  proper  court 
and  referred  to  the  commissioners  by  the  court,  and,  for 
the  purposes  of  this  section,  shall  have  free  access  to  the 
books  and  papers  relating  to  the  transactions  of  such 
receivers,  and  may  examine  them  under  oath  relative  to 
such  transactions. 


686  APPENDIX. 

Sec.  13.  Upon  the  certificate,  uuder  oath,  of  any  five  or 
more  officers,  trustees,  creditors,  shareholders,  or  de- 
positors of  any  such  corporation,  setting  forth  their  interest 
and  the  reasons  for  making  such  examination,  directed  to 
the  commissioners,  and  requesting  them  to  examine  such 
corporation,  they  shall  forthwith  make  a  full  investigation 
of  its  affairs,  in  the  manner  provided. 

Sec.  14.  The  commissioners,  if  in  their  opinion  any  such 
corporation  or  its  officers  or  trustees  have  violated  any 
law  in  relation  to  such  corporations,  shall  forthwith  report 
the  same,  with  such  remarks  as  they  deem  expedient,  to 
the  attorney-general,  who  shall  forthwith  institute  a  prose- 
cution for  such  violation,  in  behalf  of  the  people  of  the 
ctate. 

Sec.  15.  To  meet  the  expenses  provided  by  this  act, 
every  building  and  loan  association,  or  corporation  or 
association  doing  business  on  the  building  and  loan  plan, 
shall  pay,  in  advance,  to  the  commissioners,  its  pro  rata 
amount  of  such  expenses,  to  be  determined  by  an  assess- 
ment levied  on  the  shares  of  each  of  such  associations  in 
force  on  the  thirty-first  day  of  December,  eighteen  hundred 
and  ninety-two,  pro  rata,  according  to  the  par  value  of 
such  shares;  and  annually  thereafter  the  said  commis- 
sioners shall  levy,  in  a  like  manner,  and  collect  in  advance, 
a  like  assessment  on  the  shares  of  all  such  associations 
in  force  as  per  report,  herein  provided  for,  to  be  made  to 
said  commissioners,  of  the  condition  at  the  close  of  busi- 
ness on  December  thirty-first  of  each  year;  provided, 
however,  that  no  association  shall  pay  less  than  ten 
dollars  per  annum;  and  all  associations  hereafter  organized 
shall  each  pay  to  the  commissioners  for  their  licenses  not 
less  than  one  dollar  per  month  for  the  term  expiring 
December  thirty-first  succeeding,  dating  from  the  time  of 
application  for  license.  [Amendment  approved  March  26, 
1895;   Stats.  1895,  p.  104.] 

Sec.  16.  The  collection  of  all  moneys  assessed,  as 
herein  provided,  for  the  annual  expenses,  or  forfeitable  as 
fines  for  failure  to  make  reports  as  herein  specified,  and 
due  from  any  corporation  or  association  coming  within  the 
provisions  of  this  act,  may  be  enforced  by  action  in- 
stituted  in    any   court   of   competent   jurisdiction,    and    all 


BUILDIXG    AND     LOAN     ASSOCIATIONS.  687 

moneys  collected  or  received  by  the  said  commissioners 
under  this  act  shall  be  deposited  with  the  state  treasurer, 
to  the  credit  of  a  fund  to  be  known  and  designated  as  the 
"Building  and  Loan  Association  Inspection  Fund." 

Sec.  17.  No  association  shall  transact  business  in  this 
state  without  first  procuring  from  the  commissioners  of 
building  and  loan  associations  a  certificate  of  authority  or 
license  to  do  so.  To  procure  such  authority  it  must  file 
with  the  said  commissioners  a  certified  copy  of  its  articles 
of  incorporation,  constitution,  and  by-laws,  and  all  other 
printed  rules  and  regulations  relating  to  its  methods  of 
conducting  business,  and  of  all  subsequent  amendments 
or  changes  thereto,  and  otherwise  comply  with  all  require- 
ments of  law.  No  association,  after  the  expiration  of  the 
term  for  which  a  license  has  been  granted  to  it  by  the 
commissioners  of  building  and  loan  associations,  shall 
continue  to  transact  the  business  of  a  building  and  loan 
association  without  first  procuring  from  said  commission- 
ers a  renewal  of  such  license  on  the  terms  provided  for  in 
this  act;  and  any  corporation  violating  this  provision  shall 
forfeit  the  sum  of  ten  dollars  per  day  during  the  con- 
tinuance of  the  offense;  and  any  violation  of  this  section 
by  any  ofiicer  of  such  association  shall  be  a  misdemeanor. 
The  commissioners  are  authorized  and  empowered  to 
revoke  the  license  of  any  association  under  their  super- 
vision, the  solvency  whereof  is  imperiled  by  losses  or  ir- 
regularities; and  the  commissioners  immediately  upon 
revoking  such  license  shall  report  the  facts  to  the  attor- 
ney-general, who  shall  thereupon  take  such  proceedings 
as  is  provided  by  section  nine  of  this  act.  [Amendment 
approved  March  26,  1895;  Stats.  1895,  p.  104.] 

Sec.  18.  Every  building  and  loan  association  doing  busi- 
ness in  this  state  shall,  once  in  every  year,  to-wit,  within 
thirty  days  after  the  expiration  of  its  annual  fiscal  term, 
make  a  report,  in  writing,  to  the  commissioners  of  build- 
ing and  loan  associations,  verified  by  the  oath  of  its  presi- 
dent and  secretary  showing  accurately  the  financial  con- 
dition of  such  association  at  the  close  of  said  term.  The 
report  shall  be  in  such  form  as  the  commissioners  shall 
prescribe,  upon  blanks  by  them  furnished  for  that  pur- 
pose, and  shall  specify  the  following  particulars,  namely: 


688  APPENDIX. 

Name  of  the  corporation,  place  where  located,  authorized 
capital  stock,  amount  of  stock  paid  in,  the  names  of  the 
directors,  the  amount  of  capital  stock  held  by  each,  the 
amount  due  to  shareholders,  the  amount  and  character  of 
all  other  liabilities,  cash  on  hand,  and  the  number  and 
value  of  shares  in  each  and  every  series  of  stock  issued  by 
the  association.  All  money  received  or  disbursed  by  such 
association  shall  be  duly  accounted  for.  Any  association 
failing  to  file  the  annual  report  within  the  time  specified 
herein,  shall  be  subject  to  a  penalty  of  ten  dollars  per 
day  for  each  and  every  day  such  report  shall  be  delayed  or 
withheld.  [Amendment  approved  March  2G,  1895;  Stats. 
189.5,  105.] 

Sec.  19.  Stockholders  desiring  to  withdraw  from  any 
association,  or  to  surrender  a  part  or  all  of  their  stock, 
shall  have  power  to  do  so  by  giving  thirty  days'  notice  in 
writing  of  such  intention  to  withdraw.  On  the  expiration 
of  such  notice,  the  stockholder  so  withdrawing  shall  be 
entitled  to  receive  the  full  amount  paid  in  by  him  or  her, 
together  with  such  proportion  of  the  earnings  thereon  as 
the  by-laws  may  provide,  or  as  may  have  been  fixed  by 
the  board  of  directors;  provided,  that  not  more  than  one- 
half  of  the  monthly  receipts  in  any  one  month  shall  be 
applied  to  withdrawals  for  that  month,  without  the  consent 
of  the  board  of  directors,  and  no  shareholder  shall  be 
permitted  to  withdi-aw,  whose  stock  is  pledged  as  security 
to  the  association  for  a  loan  until  such  loan  is  fully  paid. 
Such  withdrawals  shall  be  paid  in  succession,  in  the  order 
that  the  notices  are  given. 

Sec.  20.  The  name  "Building  and  Loan  Association," 
and  all  reference  to  the  same  as  "association"  or  "associa- 
tions," as  used  in  this  act,  shall  include  all  corporations, 
societies,  or  organizations,  investment  companies,  or  asso- 
ciations, whether  organized  in  this  state  or  represented  by 
agents,  doing  a  savings  and  loan  or  investment  business, 
and  which  are  not  under  the  direct  supervision  of  the 
bank  commissioners  or  the  insurance  commissioner,  and 
whether  issuing  certificates  of  stock  which  mature  at  a 
time  fixed  in  advance  or  not,  and  shall  also  include  any 
association  or  company  which  is  based  on  the  plan  of  build- 
ing and  loan  associations,  and  which  contains  features 
similar  to  siich  associations;   and  said  commission kvs  are 


CEMETERIES— CHAMBERS     OF     COMMERCE.  C89 

« 

hereby  vested  with  the  power  of  determining  whether  such 
association  or  associations  contain  such  features  as  are 
based  on  plans  similar  to  those  of  building  and  loan  asso- 
ciations, and  whether  they  properly  come  within  the  pur- 
view of  this  act.  [Amendment  approved  March  26,  1895; 
Stats.  1895,  105.] 

Sec.  21.  All  acts  or  parts  of  acts  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Sec.  22.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 


CEMETERIES. 

Act  authorizing  incorporation  of  rural  cemetery  cor- 
porations: See  act  of  April  28,  1859;  Stats.  1859,  p.  281; 
and  amendments  1863-4,  p.  12;  1891,  p.  264.  See,  also, 
act  of  March  2,  1899,  Stats.  1899,  36,  supplemental  to  the 
act  of  April  28,  1859. 

Act  providing  manner  of  execution  of  deeds  by  cemetery 
corporations:      See  post,  title  Corporations. 


CHAMBERS    OF    COMMERCE. 
An  act  to  provide  for  the  formation  of  chambers  of  com- 
merce, boards  of  trade,  mechanic  institutes,  and  other 
kindred  protective  associations. 
[Approved  March  31,  1866;    1865-6,  469.     Amended  1867-8, 
5;    1885,    76.] 
This  act  came  within   the   provisions   of  the   repealing 
clause  in  sec.  288,  Civil  Code.     It  was,  however,  amended 
by  the  act  of  1885,  p.  76,  and  is  therefore  set  out  in  full. 

§    1.  Corporations  may  be  formed. 

§    2.  Certificate   of   incorporation. 

§    3.  Certified  copy  shall  be  evidence. 

§    4.  Corporations,   rights  and  powers. 

§    5.  Stock  and  certificates. 

§    6.  Trustees,  etc. 

§    7.  Real  and  personal  estate. 

§    8.  By-laws. 

§    9.  Meetings. 

§  10.  Power  to  levy  assessments. 

§  11.  Existing  corporations. 

Corporations  may  be  formed. 

Section  1.     That  corporations  for  the  formation  and  or- 
ganization  of    chambers    of    commerce,    boards    of    trade, 


690  APPENDIX. 

mechanic  institutes,  and  other  associations  for  the  ex- 
tension and  promotion  of  trade  and  commerce,  or  the  ad- 
vancement, protection,  and  improvement  of  the  mechanic 
arts  and  sciences,  may  be  formed  and  organized  according 
to  the  provisions  of  this  act,  and  such  corporations  and  the 
members  thereof  shall  be  subject  to  the  liabilities  herein 
imposed,  and  to  none  other. 

Certificate  of  incorporation. 

Sec.  2.  Any  twenty  or  more  persons  who  may  desire 
to  form  a  corporation  for  either  of  the  purposes  specified 
in  the  preceding  section  shall  make,  sign,  and  acknowledge, 
before  some  officer  competent  to  take  acknowledgment  of 
deeds,  and  file  in  the  office  of  the  county  clerk  of  the 
county  in  which  the  principal  place  of  business  of  the 
company  is  intended  to  be  located,  and  a  certified  copy 
thereof  in  the  office  of  the  secretary  of  state,  a  certificate 
in  writing,  in  whicli  shall  be  stated  the  corporate  name 
of  the  corporation,  the  object  for  which  the  corporation 
shall  be  formed,  the  time  of  its  existence,  not  to  exceed 
fifty  years,  and  the  name  of  the  city  or  town,  and  county, 
in  which  the  principal  place  of  business  of  the  corporation 
is  to  be  located. 

Certified  copy  shall  be  evidence. 

Sec.  3.  A  copy  of  any  certificate  of  incorporation  filed 
in  pursuance  of  this  act,  and  certified  by  the  county  clerk 
of  the  county  in  which  it  is  filed,  or  his  deputy,  or  by  the 
secretary  of  state,  shall  be  received  in  all  courts,  actions, 
proceedings  and  places,  as  presumptive  evidence  of  the 
facts  therein  stated. 

Corporation — Rights  and  powers. 

Sec.  4.  When  the  certificate  provided  for  in  section  two 
of  this  act  shall  have  been  filed  as  therein  pi'ovided,  the 
persons  who  shall  have  signed  and  acknowledged  the  same, 
and  such  persons  as  shall  thereafter  become  their  asso- 
ciates or  successors,  shall  be  a  body  politic  and  corporate, 
and  by  their  corporate  name  have  succession  for  the 
period  limited  and  power: 

1.  To  sue  and  be  sued  in  any  court; 

2.  To  make  and  use  a  common  seal,  and  to  alter  the 
same  at  pleasure; 

3.  To   lease,   purchase,   hold,   sell,   mortgage,   convey   in 


CHAMBERS    OF    COMMERCE.  691 

trust,   convey,  release  from  trust  or  mortgage,  such  real 
and  personal  estate  as  hereinafter  provided  in  this  act; 

4.  To  elect  or  appoint  such  officers,  agents,  and  ser- 
vants as  the  business  of  the  corporation  shall  require; 

5.  To  make  by-laws,  not  inconsistent  with  the  laws  ol 
this  state,  providing  for  the  organization  of  the  corpora- 
tion and  the  management  of  its  affairs. 

Stock  and  certificates. 

Sec.  5.  Corporations  formed  under  this  act  may  have 
a  capital  stock,  and  may  issue  certificates  to  represent 
shares  of  such  capital  stock;  provided,  that  the  certificate 
directed  in  the  second  section  of  this  act  to  be  executed 
and  filed  shall  contain  a  statement  of  the  amount  of  such 
capital  stock  and  the  number  of  shares  into  which  it  is 
divided;  and  provided,  further,  that  the  rights  and  priv- 
ileges to  be  accorded  to  stockholders,  as  distinct  from 
those  to  be  accorded  to  members  at  large  of  the  corpora- 
tion, and  the  obligations  to  be  imposed  upon  stockholders 
in  the  same  relation,  shall  be  fixed  and  established  in  the 
by-laws  of  each  of  such  corporations. 

Trustees,  etc. 

Sec.  6.  Corporations  formed  under  this  act  may  confer 
upon  a  board  of  trustees  or  directors,  or  upon  a  body  to 
be  styled  the  executive  committee  of  the  corporation,  the 
right  to  exercise  all  or  any  portion  of  the  corporate  pow- 
ers of  the  corporation;  provided,-  that  the  certificate 
directed  by  the  second  section  of  this  act  to  be  executed 
and  filed  in  those  cases  in  which  the  right  to  exercise 
the  corporate  powers  is  confined  to  a  beard  of  trustees  or 
directors,  or  to  a  body  to  be  styled  the  executive  commit- 
tee of  the  corporation,  shall  state  the  fact,  and  also  whether 
the  right  is  limited  or  otherwise;  and  in  such  corporations 
the  said  certificate  shall  also  state  the  number  of  such 
trustees  or  directors,  or  committee,  and  the  names  of  those 
who  shall  have  been  selected  to  manage  the  affairs  of  the 
corporations  for  the  first  six  months. 
Real  and  personal  estate. 

Sec.  7.  Corporations  formed  under  the  provisions  of 
this  act  shall  be  capable  in  law  to  lease,  purchase,  have, 
hold,  use,  take  possession  of,  and  enjoy,  in  fee  simple  or 
otherwise,   any   personal  or  real   estate  within  this   state 


692  APPENDIX. 

necessary  for  the  uses  and  purposes  of  such  corporation, 
and  the  same  to  sell,  lease,  deed  in  trust,  alien,  and  dis- 
pose of  at  their  pleasure.  All  real  estate  owned  by  the 
corporation  shall  be  held  in  the  name  of  the  same,  and  all 
conveyances  made  by  such  corporation  shall  be  signed  by 
the  president  and  secretary,  and  attested  by  the  corporate 
seal;  provided,  that  no  corporation  formed  under  this  act 
shall  engage  in  any  mercantile,  commercial,  or  mechan- 
ical business.  [Amendment  approved  March  10,  1885; 
Statutes  and  amendments  1885,  76;  took  effect  from  pas- 
sage;  repealed  conflicting  acts.] 

See  note  under  sec.  12,  post. 

[Act  to  legalize  defective  acknowledgments  taken  under 
this  act:     See  ante,  Appendix,  title  Acknowledgments.] 

Ey-laws. 

Sec.  8.  The  by-laws  of  all  corporations  formed  under 
the  provisions  of  this  act  without  capital  stock  shall  pre- 
scribe how  members  of  the  corporation  shall  be  admitted, 
and  how  expelled,  and  how  officers,  agents,  and  servants 
shall  be  elected  or  appointed;  and  such  provisions  in  the 
by-laws  of  any  such  corporation  shall  have  full  force  and 
effect  as  between  private  parties  and  said  corporation. 

Meetings. 

Sec.  9.  Corporations  formed  under  the  provisions  of  this 
act  shall  determine  by  their  by-laws  the  manner  of  calling 
and  conducting  their  meetings,  the  number  of  members 
that  shall  constitute  a  quorum,  the  manner  of  levying  and 
collecting  assessments,  the  officers  of  the  same,  and  the 
manner  of  their  election  or  appointment,  and  their  tenure 
of  office;  and  may  prescribe  suitable  penalties  for  the 
violation  of  their  by-laws,  not  exceeding  in  any  case  one 
hundred  dollars  for  any  one  offense. 

Power  to  levy  assessments. 

Sec.  10.  Corporations  formed  under  the  provisions  of 
this  act  having  no  board  of  trustees,  or  directors,  or  execu- 
tive committee,  shall  have  power  to  levy  and  collect  from 
the  members  thereof,  for  the  purpose  of  paying  the  proper 
and  legal  expenses  of  such  corporation,  assessments  in 
the  manner  which  may  be  prescribed  by  the  by-laws  of 
such  corporation,  and  not  otherwise. 


CHAMBERS  OF  COMMERCE.  693 

Existing  corporations  may  take  benefit  of  this  act. 

Sec.  11.  Any  existing  corporation,  association,  or  insti- 
tution formed  for  eitlier  of  the  purposes  contemplated  by 
this  act,  may,  by  a  vote  of  a  majority  of  the  members 
voting  at  a  meeting  called  specially  for  the  purpose,  be- 
come entitled  to  the  benefit  of  this  act  on  filing  the  certifi- 
cate required  by  this  act;  provided,  a  notice  of  the  meet- 
ing and  its  object  shall  be  published  in  a  paper  of  general 
circulation  in  the  county  in  which  the  principal  place  of 
business  of  such  corporation,  association,  or  institution  is 
located,  for  at  least  ten  days  previous  to  the  day  on  which 
such  meeting  is  to  be  held;  and  provided  further,  that  the 
certificate  herein  provided  to  be  filed  shall  be  signed  and 
acknowledged  by  at  least  five  of  the  members  of  such 
corporation,  association,  or  institution,  and  contain  a  list 
of  the  members  who  desire  to  become  members  of  the 
corporation.  And  upon  the  filing  of  such  certificate  as 
provided  by  this  act,  the  persons  signing  and  acknowledg- 
ing the  same,  and  those  named  therein,  and  such  persons 
as  shall  thereafter  become  their  associates  or  successors, 
shall  be  a  body  politic  and  corporate,  with  all  the  powers 
and  privileges  conferred  by  this  act,  and  shall  thereupon 
succeed  and  become  entitled  to  all  the  rights,  franchises, 
and  property  of  such  corporation,  association,  or  institu- 
tion. 

Effect. 

Sec.  12.  This  act  shall  be  in  force  from  and  after  its 
passage;  and  all  corporations  formed  under  it  are  hereby 
exernpted  from  the  operation  of  all  laws  and  parts  of  laws 
inconsistent   with   its   provisions. 

Section  7  of  the  above  act  contained  a  proviso  origi- 
nally limiting  the  amount  of  realty  that  could  be  held  by 
incorporations  under  this  statute  to  two  hundred  and  fifty 
thousand  dollars.  This  section  was  amended  in  1868  by  an 
act  approved  January  14,  1868,  enlarging  the  amount  to 
three  hundred  and  fifty  thousand  dollars.  The  amendment  ■ 
of  1885  removes  the  limit  altogether. 


694  APPENDIX. 

CO-OPERATIVE    ASSOCIATIONS. 

An  act  to  provide  for  incorporation,  operation,  and  man- 
agement of  co-operative  associations. 
[Approved   March   27,   1895;    Stats.   1895,   221.] 

§    1.  How  formed. 

§    2.  Rights   and   liabilities   of  members. 

§    3.  Articles  of  association. 

§    4.  By-laws,   meetings,  elections. 

§    5.  By-laws  to  be  recorded. 

§    G.  Property   is   subject  to  execution. 

§     7.  Business  may  be  changed. 

§    8.  Profits,   how  divided. 

§    9.  Powers  of  associations. 

§  10.  Associations  may  be  consolidated. 

§  11.  Associations  may  be  dissolved. 

§  12.  Rights  of  attorney-general  to  bring  suit. 

§  13.  Act  to  be  liberally  construed. 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  It  shall  be  lawful  for  five  or  more  persons 
to  form  a  co-operative  association  for  the  purpose  of  trans- 
acting any  lawful  business.  Such  associations  shall  not 
have  or  issue  any  capital  stock,  but  shall  issue  member- 
ship certificates  to  each  member  thereof,  and  such  member- 
ship certificates  cannot  be  assigned  so  that  the  transferee 
thereof  can  by  such  transfer  become  a  member  of  the  as- 
sociation except  by  the  resolution  of  the  board  of  directors 
of  the  association.  But  by  the  resolution  of  consent  of 
the  board  of  directors,  such  certificates  may  be  transferred, 
so  that  the  transferee  may  become  a  member  in  lieu  of  the 
last  former  holder  thereof. 

Sec.  2.  In  such  association  the  rights  and  interest  of 
all  members  shall  be  equal,  and  no  member  can  have 
or  acquire  a  greater  interest  therein  than  any  other  mem- 
ber has.  At  every  election  held  pursuant  to  the  by-laws 
each  member  shall  be  entitled  to  cast  one  vote  and  no  more. 
All  persons  above  the  age  of  eighteen  years,  regardless  of 
sex,  shall  be  eligible  to  membership,  if  otherwise  qualified 
and  elected  as  the  by-laws  may  provide.  The  by-laws  shall 
provide  for  the  amount  of  the  indebtedness  which  such 
association  may  incur.  And  no  member  shall  be  responsi- 
ble individually,  or  personally  liable,  for  any  of  the  debts 
or  liabilities  of  the  association  in  excess  of  his  proportion 
of  such  indebtedness;    but  in  case  of  the  failure  and  in- 


CO-OPERATIVE}    ASSOCIATIONS.  695 

solvency  of  such  association,  may  be  required  to  pay  any 
unpaid  dues  or  installments  which  have,  before  such  in- 
solvency, become  due  from  such  member  to  the  association, 
pursuant  to  its  by-laws. 

Sec.  3.  Every  association  formed  under  this  act  shall 
prepare  articles  of  association,  in  writing,  which  shall  set 
forth:  The  name  of  the  association,  the  purpose  for  which 
it  is  formed,  the  place  where  its  principal  business  is  to 
be  transacted,  the  term  for  which  it  is  to  exist  (not  to  ex- 
ceed fifty  years),  the  number  of  the  directors  thereof,  and 
the  names  and  residences  of  those  selected  for  the  first 
year,  the  amount  which  each  member  is  to  pay  upon  ad- 
mission as  membership  fee,  and  that  each  member  signing 
the  articles  has  actually  paid  in  such  sum,  and  that  the 
interest  and  right  of  each  member  therein  is  to  be  equal. 
Such  articles  of  association  must  be  subscribed  by  the 
original  associates  or  members,  and  acknowledged  by  each 
before  some  person  competent  to  take  an  acknowledgment 
of  a  deed  in  this  state.  Such  articles  so  subscribed  and 
acknowledged  shall  be  filed  in  the  office  of  the  secretary 
of  state,  who  shall  furnish  a  certified  copy  thereof,  which 
shall  be  filed  in  the  office  of  the  county  clerk  of  the  county 
where  the  principal  business  of  such  association  is  to  be 
transacted;  and  from  the  time  of  such  filing  in  the  office 
of  said  county  clerk  the  association  shall  be  complete, 
and  shall  have  and  exercise  all  the  powers  for  which  it 
was  formed. 

Sec.  4.  Every  association  formed  under  this  act  must, 
within  forty  days  after  it  shall  so  become  an  association, 
adopt  a  code  of  by-laws  for  the  government  and  manage- 
ment of  the  association,  not  inconsistent  with  this  act. 
A  majority  of  all  the  associates  shall  be  necessary  to  the 
adoption  of  such  by-laws,  and  the  same  must  be  written 
in  a  book,  and  subscribed  by  the  members  adopting  the 
same;  and  the  same  cannot  be  amended  or  modified  ex- 
cept by  the  vote  of  a  majority  of  all  the  members,  after 
notice  of  the  proposed  amendment  shall  be  given,  as  the 
by-laws  may  provide.  Such  association  may,  by  its  code 
of  by-laws,  provide  for  the  time,  place,  and  manner  of 
calling  and  conducting  its  meetings;  the  number  of  di- 
rectors, the  time  of  their  election,  their  term  of  office, 
the   mode   and   manner   of   their   removal,   the   mode   and 


696  APPENDIX. 

manner  of  filling  vacancies  in  the  board  caused  by  death, 
resigup,*ion,  removal,  or  otherwise,  and  the  power  and 
authority  of  such  directors,  and  how  many  thereof  shall 
be  necessary  to  the  exercise  of  the  powers  of  such 
directors,  which  must  le  at  least  a  majority;  the  compen- 
sation of  any  of  the  directors,  or  of  any  officer;  the  num- 
ber of  the  officers,  if  any,  other  than  the  directors,  and 
their  term  of  office;  the  mode  of  removal,  and  the  method 
of  filling  a  vacancy;  the  mode  and  manner  of  conducting 
business;  the  mode  and  manner  of  conducting  elections, 
and  may  provide  for  voting  by  ballots  forwarded  by  mail 
or  otherwise;  provided,  the  method  shall  secure  the  se- 
crecy of  the  ballot;  the  mode  and  manner  of  succession 
of  membership,  and  the  qualifications  for  membership, 
and  on  what  conditions,  and  when  membership  shall  cease, 
and'  the  mode  and  manner  of  expulsion  of  a  member  sub- 
ject to  the  right  that  an  expelled  member  shall  have  a 
right  to  have  the  board  of  directors  appraise  his  interest 
in  the  association  in  either  money,  property,  or  labor,  as 
the  directors  shall  deem  best,  and  to  have  the  money, 
property,  or  labor  so  awarded  him  paid  or  delivered,  or 
performed  within  forty  days  after  expulsion;  the  amount 
of  membership  fee,  and  the  dues,  installments,  or  labor 
which  each  member  shall  be  required  to  pay  or  perform, 
if  any,  and  the  manner  of  collection  or  enforcement,  and 
for  forfeiting  or  selling  of  membei'ship  interest  for  non- 
payment or  nonperformance;  the  method,  time,  and  man- 
ner of  permitting  the  withdrawal  of  a  member,  if  at  all, 
and  how  his  interest  shall  be  ascertained,  either  in  money 
or  property,  and  within  what  time  the  same  shall  be  paid 
or  delivered  to  such  member;  the  mode  and  manner  of 
ascertaining  the  interest  of  a  member  at  his  death,  if  his 
legal  representatives  or  none  of  them  desire  to  succeed  to 
the  membership,  and  whether  the  same  shall  be  paid  to  his 
legal  representatives  in  money,  or  property,  or  labor,  and 
within  what  time  the  same  shall  be  paid,  or  delivered, 
or  performed;  such  other  things  as  may  be  proper  to 
carry  out  the  purpose  for  which  the  association  was 
formed. 

Sec.  5,  The  by-laws  and  all  amendments  must  be  re- 
corded in  a  book  and  kept  in  the  office  of  the  association, 
and  a  copy,  certified  by  the  directors,  must  be  filed  in  the 


CO-OPERATIVE    ASSOCIATIONS.  697 

office  of  the  county  clerk  where  the  principal  business  is 
transacted. 

Sec.  6.  The  property  of  such  association  shall  he  sub- 
ject to  judgment  and  execution  for  the  lawful  debts  of  the 
association.  The  interest  of  a  member  in  such  association, 
if  sold  upon  execution  or  any  judicial  or  governmental  or- 
der whatever,  cannot  authorize  the  purchaser  to  have  any 
right  except  to  succeed,  as  a  member  in  the  association, 
with  the  consent  of  the  directors,  to  the  rights  of  the 
member  whose  interest  is  thus  sold.  If  the  directors  shall 
choose  to  pay  or  settle  the  matter  after  such  sale,  they 
may  either  cancel  the  membership,  and  add  the  interest 
thus  sold  to  the  assets  or  common  property  of  the  asso- 
ciation, or  reissue  the  share  or  right  to  a  new  member 
upon  proper  payment  therefor,  as  the  directors  may  deter- 
mine. 

Sec.  7.  The  purpose  of  the  business  may  be  altered, 
changed,  modified,  enlarged,  or  diminished  by  a  vote  of 
two  thirds  of  all  the  members,  at  a  special  election  to  be 
called  for  such  purpose,  of  which  notice  must  be  given  the 
same  as  the  by-laws  shall  provide  for  election  of  directors. 

Sec.  8.  The  by-laws  shall  provide  for  the  time  and 
manner  in  which  profits  shall  be  divided  between  the 
members,  and  what  proportion  of  the  profits,  if  any,  shall 
be  added  to  the  common  property  or  funds  of  the  associa- 
tion. But  the  bylaws  may  provide  that  the  directors  may 
suspend  or  pass  the  payment  of  any  such  profit,  or  install- 
ment of  earnings,  at  their  discretion. 

Sec.  9.  Every  association  formed  under  this  act  shall 
have  power  of  succession  by  its  associate  name  for  fifty 
years;  to,  in  such  name,  sue  and  be  sued  in  any  court; 
to  make  and  use  a  common  seal,  and  alter  the  same  at 
pleasure;  to  receive  by  gift,  devise,  or  purchase,  hold, 
and  convey  real  and  personal  property,  as  the  purposes  of 
the  association  may  require;  to  appoint  such  subordinate 
agents  or  officers  as  the  busines  may  require;  to  admit 
associates  or  members,  and  to  sell  or  forfeit  their  interest 
in  the  association  for  default  of  installments,  or  dues,  or 
work,  or  labor  required,  as  provided  by  the  by-laws;  to 
enter  into  any  and  all  lawful  contracts  or  obligations 
essential  to  the  transaction  of  its  affairs,  for  the  purpose 
Civ.   Code— 30 


698  APPENDIX. 

for  which  it  was  formed,  and  to  borrow  money,  and  issue 
all  such  notes,  bills,  or  evidences  of  indebtedness  or  mort- 
gage as  its  by-laws  may  provide  for;  to  trade,  barter,  buy, 
sell,  exchange,  and  to  do  all  other  things  proper  to  be  done 
for  the  purpose  of  carrying  Into  effect  the  objects  for  which 
the  association  is  formed. 

6ec.  10.  Two  or  more  associations  formed  and  existing 
under  this  act  may  be  consolidated  together,  upon  such 
terms  and  for  such  purposes,  and  by  such  name,  as  may 
be  agreed  upon,  in  writing,  signed  by  two  thirds  of  the 
members  of  each  such  association.  Such  agreement  must 
also  state  all  the  matters  necessary  to  articles  of  associa- 
tion, and  must  be  acknowledged  by  the  signers  before  an 
oflBcer  competent  to  take  an  acknowledgment  of  deeds  in 
this  state,  and  be  filed  in  the  office  of  the  secretary  of 
state,  and  a  certified  copy  thereof  be  filed  in  the  office 
of  the  county  clerk  of  the  county  where  its  principal  busi- 
ness is  to  be  transacted;  and  from  and  after  the  filing  of 
such  certified  copy,  the  former  associations  comprising 
the  component  parts  shall  cease  to  exist,  and  the  consol- 
idated association  shall  succeed  to  all  the  rights,  duties, 
and  powers  of  the  component  associations,  and  be  pos- 
sessed of  all  the  rights,  duties,  and  powers  prescribed  in 
the  agreement  of  consolidated  association  not  inconsist- 
ent with  this  act,  and  shall  be  subject  to  all  the  liabilities 
and  obligations  of  the  former  component  associations,  and 
succeed  to  all  the  property  and  interests  thereof,  and  may 
make  by-laws  and  do  all  things  permitted  by  this  act. 

Sec.  11.  Any  association  formed  or  consolidated  under 
this  act  may  be  dissolved  and  its  affairs  wound  up  volun- 
tarily by  the  written  request  of  two  thirds  of  the  members. 
Such  request  shall  be  addressed  to  the  directors,  and  shall 
specify  reasons  why  the  winding  up  of  the  affairs  of  the 
association  is  deemed  advisable,  and  shall  name  three  per- 
sons who  are  members  to  act  in  liquidation  and  in  winding 
up  the  affairs  of  the  association,  a  majority  of  whom  shall 
thereupon  have  full  power  to  do  all  things  necessary  to 
liquidation;  and  upon  the  filing  of  such  request  with  the 
directors,  and  a  copy  thereof  in  the  office  of  the  county 
clerk  of  the  county  where  the  principal  business  is  tran- 
sacted, all  power  of  the  directors  shall  cease  and  the 
persons  appointed  shall  proceed  to  wind  up  the  association, 


CO-OPERATIVE  ASSOCIATIONS— CORPORATIONS.  699 

and  realize  upon  its  assets,  and  pay  its  debts,  and  divide 
the  residue  of  its  money  among  tlie  members,  share  and 
share  alike,  within  a  time  to  be  named  in  said  written 
request,  or  such  further  time  as  may  be  granted  them  by 
two  thirds  of  the  members,  in  writing,  filed  in  the  office  of 
said  county  clerk;  and  upon  the  completion  of  such  liquida- 
tion the  said  association  shall  be  deemed  dissolved.  No 
receiver  of  any  such  association,  or  of  any  property 
thereof,  or  of  any  right  therein,  can  be  appointed  by  any 
court,  upon  the  application  of  any  member,'  save  after 
judgment  of  dissolution  for  usurping  franchises  at  the  suit 
of  the  state  of  California  by  its  attorney-general. 

Sec.  12.  The  right  of  any  association  claiming  to  be 
organized  under  this  act  to  do  business  may  be  inquired 
into  by  quo  warranto,  at  the  suit  of  the  attorney-general  of 
this  state,  but  not  otherwise. 

Sec.  13.  This  act  being  passed  to  promote  association 
for  mutual  welfare,  the  words  "  lawful  business "  shall 
extend  to  every  kind  of  lawful  effort  for  business,  educa- 
tional, industrial,  benevolent,  social,  or  political  purposes, 
whether  conducted  for  profit  or  not,  and  this  act  shall  not 
be  strictly  construed,  but  its  provisions  must  at  all  times 
be  liberally  construed,  with  a  view  to  affect  its  object  and 
to  promote  its  purposes. 

Sec.  14.    This  act  shall  take  effect  immediately. 

An  act  to  define  co-operative  business  corporations  and  to 

provide  for  the  organization  and  government  thereof. 

[Approved  April  1,  1878;   1877-8,  883.     Superseded  by  act 

of  1895,  221.] 


CORPORATIONS. 
Act  allowing  corporation  to  act  as  surety:  See  ante,  title 
Bonds. 

Cemetery  corporations:      See  ante,  title  Cemeteries. 
An  act  to  provide  for  the  payment  of  the  wages  of  me- 
chanics and  laborers  employed  by  corporations. 
[Approved  March  31,  1891;    Stats.   1891,  195.] 

§  1.     Wages  paid  monthly. 
§   2.      Nonpayment,  rights  on. 


700  APPENDIX. 

Section  1.  Every  corporation  doing  business  In  this 
state  shall  pay  the  mechanics  and  laborers  employed  by 
it  the  wages  earned  by  and  due  them  weekly  or  monthly, 
on  such  day  in  each  week  or  month  as  shall  be  selected 
by  said  corporation. 

Sec.  2.  A  violation  of  the  provisions  of  section  one  of 
this  act  shall  entitle  each  of  the  said  mechanics  and  labor- 
ers to  a  lien  on  all  the  property  of  said  corporation  for  the 
amount  of  their  wages,  which  lien  shall  take  preference 
over  all  other  liens,  except  duly  recorded  mortgages  or 
deeds  of  trust;  and  in  any  action  to  recover  the  amount 
of  such  wages  or  to  enforce  said  lien,  the  plaintiff  shall 
be  entitled  to  a  reasonable  attorney's  fee,  to  be  fixed  by 
the  court,  and  which  shall  form  part  of  the  judgment  in 
said  action,  and  shall  also  be  entitled  to  an  attachment 
against  said  property. 

Declared  unconstitutional  in  Slocum  v.  Bear  Valley  Irri- 
gation Co.,  122  Cal.  555. 

An  act  requiring  every  corporation  doing  business  in  this 
state  to  pay  their  employees,  and  each  of  them,  at  least 
once  in  each  and  every  month,  the  wages  earned  by 
such  employee;  to  limit  the  defenses  which  may  be  set 
up  by  such  corporation  to  assignments  of  wages,  set- 
off or  counterclaim,  or  the  absence  of  such  employee 
at  the  time  of  making  payment,  and  in  case  of  such  ab- 
sence the  wages  are  payable  upon  demand;  to  prohibit 
assignments  of  wages  for  the  purpose  of  evading  the 
provisions  of  this  act  and  agreements  to  accept  wages 
at  longer  periods  than  as  herein  provided  as  a  con- 
dition of  employment;  to  fix  a  penalty  for  this  violation 
of  the  provisions  of  this  act  by  such  corporation,  and 
to  provide  for  the  disposition  of  any  fines  recovered 
from  corporations  violating  the  same. 

[Approved  March  29,  1897;  Stats.  1897,  p.  231.] 
See  note  under  sec.  8. 

§  1.  Corporation  must  pay  wages  monthly. 

I  2.  Lien   in  caae  of  failure. 

§  3.  Defenses. 

§  4.  Assignment   of  wages. 

§  5.  Agreement  as  to  wages. 

§  6.  In  what  money  wages  payable. 

§  7.  Penalty  . 


CORPORATIONS.  701 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  Every  corporation  doing  business  in  this 
state  shall  pay,  at  least  once  a  month,  each  and  every 
employee  employed  by  such  corporation,  in  transacting  or 
carrying  on  its  business,  or  in  the  performance  of  labor  for 
it,  the  wages  earned  by  such  employee  during  the  pre- 
ceding month;  provided,  however,  that  if  at  the  time  of 
payment  any  employee  shall  be  absent,  or  not  engaged  in 
his  usual  employment,  he  shall  be  entitled  to  said  payment 
at  any  time  thereafter  upon  demand. 

Sec.  2.  A  violation  of  any  of  the  provisions  of  section 
one  of  this  act  shall  entitle  each  of  the  said  employees  to 
a  lien  on  all  the  property  of  said  corporation  for  the  amount 
of  their  wages,  which  lien  shall  take  preference  over  all 
other  liens,  except  duly  recorded  mortgages  or  deeds  of 
trust;  and  in  any  action  to  recover  the  amount  of  such 
wages,  or  to  enforce  said  lien,  the  plaintiff  shall  be  entitled 
to  a  reasonable  attorney's  fee,  to  be  fixed  by  the  court,  and 
which  shall  form  part  of  the  judgment  in  said  action,  and 
shall  also  be  entitled  to  an  attachment  against  said  prop- 
erty. An  unrecorded  deed  shall  be  no  defense  to  such 
actions. 

Sec.  3.  That  on  the  trial  of  any  action  against  such  cor- 
poration for  a  violation  of  the  provisions  of  this  act,  such 
corporation  shall  not  be  allowed  to  set  up  any  defense  for 
a  failure  to  pay  monthly  any  employee  engaged  in  trans- 
acting or  carrying  on  its  business  the  wages  earned  by  such 
employee  during  the  preceding  month,  other  than  the  fact 
that  such  wages  were  not  earned,  except  a  valid  assign- 
ment of  such  wages,  a  setoff  or  counterclaim  against  the 
same,  or  the  absence  of  such  employee  from  his  usual 
employment  at  the  time  of  the  payment  of  the  wages  so 
earned  by  hira. 

Sec.  4.  No  assignment  of  future  wages,  payable  monthly 
under  the  provisions  of  this  act.  shall  be  made  to  the 
corporation  from  which  such  wages  are  or  may  become 
due,  to  any  person,  on  behalf  of  such  corporation,  for  the 
purpose  of  evading  the  provisions  of  this  act,  and  all  such 
assignments  are  hereby  declared  to  be  invalid. 

Sec.  5.  No  corporation  shall  require,  and  no  employee 
of  such  corporation  shall  make,  any  agreement  to  accept 


702  APPENDIX. 

wages  at  longer  periods  than  as  provided  in  this  act  as  a 
condition  of  employment. 

Sec.  6.  All  wages  earned  by  any  employee  engaged  in 
the  service  of  any  corporation  in  this  state  shall  be  paid 
in  lawful  moneys  of  the  United  States,  or  in  checks 
negotiable  at  face  value  on  demand. 

Sec.  7.  Any  corporation  violating  any  of  the  provisions 
of  this  act  shall  be  subject  to  a  fine  not  exceeding  one 
hundred  dollars,  or  less  than  fifty  dollars,  for  each  vio- 
lation, the  same  to  be  imposed  by  any  court  in  this  state 
having  jurisdiction  of  offenses  in  which  the  penalty  does 
not  exceed  a  fine  of  one  hundred  dollars;  said  tine  to  be 
paid  by  the  judge  or  magistrate  before  whom  a  recovery 
maj'  be  had  under  the  provisions  of  this  act,  into  the 
general  fund  of  the  treasury  of  the  county  in  which  said 
conviction  may  be  had. 

Sec.  8.  This  act  shall  take  effect  and  be  in  force  from 
and  after  the  first  day  of  April,  eighteen  hundred  and 
ninety-seven. 

Declared  unconstitutional  in  Johnson  v.  Goodyear  M.  Co., 
127  Cal.  4. 

An  act  authorizing  certain  corporations  to  act  as  executor 

■  and  in  other  capacities,  and  to  provide  for  and  regulate 

the  administration  of  trusts  by  such  corporations. 

[Approved  April   6,   1891;    Stats.   1891,   p.   490.     Amended 

1897,  424;   1903,  p.  244.] 

§    1.  What  corporations  may  act  as  executor. 

§    2.  Deposits  made   witli   corporation. 

§    3.  Public   administrator  may  make   deposits. 

§    4.  Court  may  order  deposit  and  reduce  bonds, 

i    5.  Responsible  for  investments. 

§    6.  Interest. 

§    7.  Deposit  of  bonds  with  state  treasurer.  , 

§    8.  May  mortgage  real  estate. 

§    9.  Deposit,   increase,  and  decrease  of. 

§  10.  Abstracts  of  title. 

§  11.  Certificate  of  authority. 

§  12.  Semi-annual  statement. 

§  13.  Verification  of  statement. 

§  14.  Duty  of  bank  commissioners. 

§  15.  No  section. 

§  16.  Administering  oaths  and  examining  witnesses. 

§  17.  Duty  when   corporation   violates   law. 

§  18.  False   statement   revokes  authority. 

§  19.  Retirement  from  business. 

§  20.  Conflicting   acts    repealed. 

§  21.  Time  of  taking  effect. 

§  22.  Communications  confidential. 


CORPORATIONS.  703 

Section  1.  Any  corporation  which  has  or  shall  be  in- 
corporated under  the  general  incorporation  laws  of  this 
state,  authorized  by  its  articles  of  incorporation  to  act  as 
executor,  administrator,  guardian,  assignee,  receiver,  de- 
positary, or  trustee,  and  having  a  paid-up  capital  of  not 
less  than  two  hundred  and  fifty  thousand  dollars,  of  which 
one  hundred  thousand  dollars  shall  have  been  actually 
paid  in,  in  cash,  may  be  appointed  to  act  in  such  capacity 
in  like  manner  as  individuals.  In  all  cases  in  which  it  is 
required  that  an  executor,  administrator,  guardian,  as- 
signee, receiver,  depositary,  or  trustee,  shall  qualify  by 
taking  and  subscribing  an  oath,  or  in  which  an  affidavit  is 
required,  it  shall  be  a  suflicient  qualification  by  such  cor- 
poration if  such  oath  shall  be  taken  and  subscribed  or  such 
affidavit  made  by  the  president  or  secretary  or  manager 
thereof,  and  such  officer  shall  be  liable  for  the  failure  of 
such  corporation  to  perform  any  of  the  duties  required  by 
law  to  be  performed  by  individuals  acting  in  like  capacity 
and  subject  to  like  penalties;  and  such  corporation  shall 
be  liable  for  such  failure  to  the  full  amount  of  its  capital 
stock;  provided  any  such  appointment  as  guardian  shall 
apply  to  the  estate  only,  and  not  to  the  person.  Such  cor- 
porations shali  be  entitled  to  and  shall  be  allowed  proper 
compensation  for  all  the  services  performed  by  them 
under  the  foregoing  provisions  of  this  act;  but  such  com- 
pensation shall  not  exceed  that  allowed  to  natural  persons 
for  like  services. 

Sec.  2.  Any  court,  having  appointed  and  having  juris- 
diction of  any  executor,  administrator,  guardian,  assignee, 
receiver,  depositary,  or  trustee,  upon  the  application  of 
such  officer  or  trustee,  or  upon  the  application  of  any 
person  having  an  interest  in  the  estate  administered  by 
such  officer  or  trustee,  after  notice  to  the  other  parties  in 
interest,  as  the  court  may  direct,  and  after  a  hearing  upon 
such  application,  may  order  such  officer  or  trustee  to 
deposit  any  moneys  then  in  his  hands,  or  which  may  come 
into  his  hands  thereafter,  and  until  the  further  order  of 
said  court,  with  any  such  corporation,  and  upon  deposit 
of  such  money  and  its  receipt  and  acceptance  by  such 
corporation  the  said  officer  or  trustee  shall  be  discharged 
from  further  care  or  responsibility  therefor.  Such  deposits 
shall  be  paid  out  only  upon  the  orders  of  said  court. 


704  APPENDIX. 

Sec.  3.  And  it  shall  be  lawful  for  any  public  adminis- 
trator to  deposit  with  any  such  corporation  doing  business 
In  the  county  or  city  and  county,  in  which  he  is  acting  as 
such  administrator  any  and  all  moneys  of  any  estate  upon 
which  he  is  administering,  not  required  for  the  current 
expenses  of  the  administration.  And  such  deposits  shall 
relieve  the  public  administrator  from  depositing  with  the 
county  treasurer  the  moneys  so  deposited  with  such  cor- 
poration. Moneys  deposited  by  a  public  administrator 
may  be  drawn  upon  the  order  of  such  administrator,  coun- 
tersigned by  a  judge  of  a  superior  court,  when  required 
for  the  purpose  of  administration  or  otherwise. 

Sec.  4.  Whenever,  in  the  judgment  of  any  court  having 
jurisdiction  of  any  estate  in  process  of  administration  by 
any  executor,  administrator,  guardian,  assignee,  receiver, 
depositary,  or  trustee,  the  bond  required  by  law  of 
such  officer  shall  seem  burdensome  or  excessive,  upon 
application  of  such  officer  or  trustee,  and  after  such 
notice  to  the  parties  in  interest,  as  the  court  shall 
direct,  and  after  a  hearing  on  such  application,  the 
said  court  may  order  the  said  officer  or  trustee  to  de- 
posit with  any  such  corporation,  for  safekeeping,  such 
portion  or  all  of  the  personal  assets  of  seid  estate  as 
it  shall  deem  proper;  and  thereupon  said  court  shall, 
by  an  order  of  record,  reduce  the  bond  to  be  given  or 
theretofore  given  by  such  officer  or  trustees,  so  as  to 
cover  only  the  estate  remaining  in  the  hands  of  said 
officer  or  trustee;  and  the  property  as  deposited  shall 
thereupon  be  held  by  said  corporation,  under  the  orders 
and  directions  of  said  court.  Any  court  having  jurisdiction 
of  an  estate  being  administered  by  a  public  administrator 
may  direct  such  public  administrator  to  deposit  all  or  any 
part  of  the  moneys  of  the  estate  not  required  for  the  current 
expenses  of  the  administration,  with  any  such  corporation 
doing  business  in  the  county  or  city  and  county  where 
such  public  administrator  is  acting. 

Sec.  5.  Such  corporations  shall  not  be  required  to  give 
any  bond  or  security  in  case  of  any  appointment  herein- 
before provided  for,  except  as  hereinafter  provided,  but 
shall  be  responsible  for  all  investments  which  shall  be 
made  by  it  of  the  funds  which  may  be  intrusted  to  it  for 
investment  by  such  court,  and  shall  be  further  liable  as 


CORPORATIONS.  705 

natural  persons  in  like  positions  now  are,  and  as  herein- 
after provided.  The  amount  of  money  which  any  such  cor- 
poration shall  have  on  deposit  at  any  time  shall  not  exceed 
ten  times  the  amount  of  its  paid-up  capital  and  surplus, 
and  its  outstanding  loans  shall  not  at  any  time  exceed  said 
amount. 

Sec.  6.  Such  corporations  shall  pay  interest  upon  all 
moneys  held  by  them  by  virtue  of  this  act,  at  such  rate  as 
may  be  agreed  upon  at  the  time  of  its  acceptance  of  any 
such  appointment,  or  as  shall  be  provided  by  the  order  of 
the  court. 

■  Sec.  7.  Each  corporation,  before  accepting  any  such 
appointment  or  deposit,  shall  deposit  with  the  treasurer 
of  state,  for  the  benefit  of  the  creditors  of  said  corporation, 
the  sum  of  one  hundred  thousand  dollars  ($100,000.00),  in 
bonds  of  the  United  States,  or  municipal  bonds  of  this 
state,  or  of  any  county,  or  city,  or  school  district  thereof, 
or  in  mortgages  on  improved  and  productive  real  estate 
in  this  state,  being  first  liens  thereon,  and  the  real  estate 
being  worth  at  least  twice  the  amount  loaned  thereon. 
The  bonds  and  securities  so  deposited  may  be  exchanged 
from  time  to  time  for  other  securities,  receivable  as  afore- 
said. Said  bonds  of  the  United  States,  or  municipal  bonds 
of  this  state,  or  of  any  county,  city,  or  school  district 
thereof,  to  be  registered  in  the  name  of  said  treasurer, 
officially,  and  all  said  securities  to  be  subject  to  sale  and 
transfer,  and  to  the  disposal  of  the  proceeds  by  said 
treasurer,  only  on  the  order  of  a  court  of  competent  juris- 
diction, and  as  hereinafter  provided.  [Amendment  ap- 
proved April  1,   1897;    Stats.   1897,   424.] 

Sec.  8.  Any  such  corporation,  having  a  paid-up  capital 
in  excess  of  two  hundred  and  fifty  thousand  dollars,  may 
be  permitted  by  the  board  of  bank  commissioners  to  mort- 
gage any  improved  and  productive  real  estate  owned  by  it, 
in  excess  of  said  amount,  to  the  treasurer  of  state,  for  such 
sum  as  the  said  board  may  determine;  and  such  mortgage 
may  be  deposited  with  said  treasurer,  and,  when  so  de- 
posited, it  shall  be  included  in  the  amount  of  securities, 
hereinabove  required  to  be  deposited  with  said  treasurer 
for  the  benefit  of  the  creditors  of  said  corporation. 

Sec.  9.  So  long  as  the  corporation  so  depositing  shall 
continue  solvent,   such  corporation  shall   be  permitted  to 


706  APPENDIX. 

receive  from  said  treasurer  the  interest  or  dividends  on 
said  deposit;  provided,  hiowever,  that  when  it  shall  appear 
to  the  board  of  bank  commissioners,  from  the  semi-annual 
report  of  any  such  corporation,  that  the  value  of  the  per- 
sonal property  and  cash  held  and  possessed  by  such 
corporation,  by  virtue  of  the  provisions  of  this  act  and 
any  amendment  thereof,  exceeds  ten  times  the  amount 
of  the  deposit  aforesaid,  said  board  shall  require  said  cor- 
poration to  forthwith  increase  its  said  deposit  to  the  sum 
of  five  hundred  thousand  dollars  in  such  securities.  And 
whenever  it  shall  appear  to  said  board  that  the  amount  of 
personal  property  and  cash  so  held  by  any  such  corporation, 
has  been  reduced  below  ten  times  the  value  of  its  original 
deposit  above  provided  for,  and  said  corporation  is  not  in 
any  default  in  its  duties  and  obligations  hereunder,  they 
shall  allow  such  corporation  to  reduce  its  said  deposit  to 
the  sum  of  two  hundred  thousand  dollars,  by  the  withdrawal 
of  such  additional  deposit,  until  such  time  as  an  increase 
in  its  holdings  shall  again  require  an  additional  deposit,  as 
hereinbefore  provided. 

Sec.  10.  When  any  part  of  such  deposit  is  made  in  bonds 
and  mortgages,  it  shall  be  accompanied  by  full  abstracts 
of  titles  and  searches,  and  shall  be  examined  and  approved 
by  or  under  the  direction  of  the  said  board.  The  fees  for 
an  examination  of  title  by  counsel,  to  be  paid  by  the  cor- 
poration making  the  deposit,  shall  not  exceed  twenty  dol- 
lars for  each  mortgage,  and  the  fee  for  each  appraiser,  not 
exceeding  two,  besides  expenses,  shall  be  five  dollars  for 
each  mortgage. 

Sec.  11.  It  shall  not  be  lawful  for  any  such  corporation 
to  accept  any  trust  or  deposit,  as  hereinbefore  provided, 
after  the  passage  of  this  act  without  first  procuring  from 
the  board  of  bank  commissioners  a  certificate  of  authority, 
stating  that  such  corporation  has  complied  with  the  re- 
quirements of  this  act  in  respect  to  such  deposit. 

Sec.  12.  Such  corporation  shall  file  with  the  said  board 
of  bank  commissioners,  during  the  months  of  January 
and  July  of  each  year,  a  statement,  under  oath,  of  the 
condition  of  such  corporation  at  the  close  of  business  on 
the  thirty-first  day  of  December  and  the  thirtieth  day  of 
June,  respectively,  next  preceding,  showing  its  financial 
condition.     Also,  a  list  and  brief  description  of  me  trusts 


CORPORATIONS.  707 

held  by  such  corporation,  the  source  of  the  appointment 
thereto,  and  the  amount  of  real  and  personal  estate  held 
by  such  corporation  by  virtue  thereof,  except  that  mere 
mortgage  trusts,  wherein  no  action  has  been  taken  by  such 
corporation,  shall  not  be  included  in  such  statement.  The 
said  statement  shall  also  be  in  such  form,  and  contain 
such  reports,  returns,  and  informatioTi,  as  to  the  affairs, 
business,  condition,  and  resources  of  the  corporation,  as 
the  said  board  may  from  time  to  time  prescribe  and  require. 

Sec.  13.  Such  statement  shall  be  verified  by  the  affi- 
davit of  one  of  the  managing  officers  and  two  of  the 
directors  or  trustees  of  such  corporation,  who  shall  also 
state  in  such  affidavit  that  they  have  examined  the  assets 
and  books  of  such  corporation  for  the  purpose  of  making 
such  statement.  Any  false  swearing  in  regard  to  such 
statement  shall  be  deemed  perjury,  and  shall  be  subject 
to  the  punishment  prescribed  by  law  for  such  offense. 

Sec.  14.  The  said  board  of  bank  commissioners  are 
hereby  authorized  and  empowered  to  address  any  inquiries 
to  any  such  corporation,  or  the  officers  thereof,  in  relation 
to  its  doings  and  conditions,  or  any  other  matter  con- 
nected with  its  affairs;  and  it  shall  be  the  duty  of  any  such 
corporation  or  person  so  addressed  to  promptly  reply,  in 
writing,  to  such  inquiries;  and  they  may  also  require 
reports  from  any  such  corporation  at  any  time  they  may 
deem  desirable.  It  shall  be  the  duty  of  one  or  more  of 
the  bank  commissioners,  as  designated  by  the  commis- 
sioners, annually,  or  as  often  as  in  their  judgment  they 
may  deem  it  necessary,  without  previous  notice,  to  visit 
and  to  make  personal  examination  of  the  solvency  of  any 
such  corporation,  its  ability  to  fulfill  all  its  obligations, 
and  report  its  condition  to  the  attorney-general  as  soon 
as  may  be  after  such  examination. 

Sec.  16.  Such  commissioners  shall  have  power  to  ad- 
minister an  oath  to  any  person  whose  testimony  may  be 
required  oji  any  such  examination,  and  to  compel  the 
appearance  and  attendance  of  any  such  person,  for  the 
purpose  of  examination,  by  summons,  subpoena,  or  attacli- 
ment,  in  the  manner  now  authorized  in  respect  to  the 
attendance  of  persons  as  witnesses  in  courts  of  record 
in  this  state;  and  all  books  and  papers  which  may  be 
deemed  necessary  to  examine  by  the  commissioners  shall 


■^08  APPENDIX. 

be  produced,  and  their  production  may  be  compelled  in  like 
manner. 

Sec.  17.  Whenever  it  shall  appear  to  the  board  of  bank 
commissioners,  from  any  such  examination  or  report,  that 
any  such  corporation  has  committed  any  violation  of  law, 
or  is  conducting  its  business  in  an  unsafe  or  unauthor- 
ized manner,  they  shall,  by  an  order  under  their  hands, 
direct  the  discontinuance  of  such  illegal  and  unsafe  or 
unauthorized  practice,  and  strict  conformity  with  the  re- 
quirements of  the  law,  and  with  safety  and  security  in  its 
transactions;  and  whenever  any  such  corporation  shall 
refuse  or  neglect  to  make  any  such  report  as  hereinbefore 
required  or  to  comply  v/ith  any  such  order  as  aforesaid,  or 
whenever  it  shall  appear  to  the  said  board  that  it  is 
riur;afe  or  inexpedient  for  any  such  corporation  to  continue 
to  transact  business,  they  shall  communicate  the  facts  to 
the  attorney-general,  who  shall  thereupon  institute  such 
proceedings  against  the  corporation  as  the  nature  of  tbe 
case  may  require. 

Sec.  IS.  If  the  board  of  bank  commissioners  shall  at  any 
time  have  satisfactory  evidence  that  any  semi-annual  state- 
ment or  other  report  required  or  authorized  by  this  act, 
made  or  to  be  made  by  any  officer  or  officers  of  such  cor- 
poration, is  false,  it  shall  be  the  duty  of  the  said  board  to 
immediately  revoke  the  certificate  of  authority  granted  on 
behalf  of  such  corporation  and  mail  a  copy  of  such  revoca- 
tion to  said  corporation  and  to  the  clerk  of  every  court  of 
record  in  this  state.  Such  revocation  shall  not  be  set  aside 
until  satisfactory  evidence  shall  be  given  to  said  board 
of  bank  commissioners  that  such  corporation  is  in  sub- 
stance and  in  fact  in  the  condition  set  forth  in  such  state- 
ment or  report,  and  that  all  the  requirements  of  this  act 
have  been  complied  with.  Such  revocation  shall  be  suffi- 
cient cause  for  the  removal  of  such  corporation  from  any 
appointment  held  by  it  under  the  provisions  of  this  act. 

Sec.  19.  Any  corporation  which  desires  to  retire  from 
business  under  this  act  shall  furnish  to  the  bo^rd  of  bank 
commissioners  satisfactory  evidence  of  its  release  and  dis- 
charge from  all  the  obligations  and  trusts  hereinbefore 
provided  for;  whereupon  they  shall  revoke  their  certificate 
to  such  corporation,  and  thereupon  the  treasurer  of  state 
shall  return  to  said  corporation  all  its  securities. 


CORPORATIONS.  709 

Sec.  20.  All  laws  and  parts  of  laws  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Sec.  21.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

Sec.  22.  Any  corporation  exercising  the  powers  and 
performing  the  duties  provided  for  in  said  act,  shall  keep 
inviolate  all  communications  confidentially  made  to  it 
touching  the  existence,  condition,  management,  and  ad- 
ministration of  any  trusts  confided  to  it;  and  no  creditor 
or  stockholder  of  any  such  corporation  shall  be  entitled 
to  disclosure  of  any  such  communication;  provided,  how- 
ever, that  the  president,  manager  and  secretary  of  such 
corporation  shall  be  entitled  to  knowledge  of  such  com- 
munication; and  provided  further,  that  in  any  suit  or 
proceeding  touching  the  existence,  condition,  management 
or  administration  of  such  trust,  the  court  wherein  the 
same  is  pending  may  require  disclosure  of  any  such  com- 
munication. [New  section  approved  March  20,  1903;  btats. 
1903,  p.  244.     In  effect  on  passage.] 


An  act  to  protect  stockholders  and  persons  dealing  with 

corporations  in  this  state. 

[Approved   March  29,  1878;    1877-8,   695.] 

Frauds  and  misrepresentations,  penalty  fori 

Section  1.  Any  superintendent,  director,  secretary, 
manager,  agent,  or  other  oflicer  of  any  corporation  formed 
or  existing  under  the  laws  of  this  state,  or  transacting  busi- 
ness in  the  same,  and  any  person  pretending  or  holding 
himself  out  as  such  superintendent,  director,  secretary, 
manager,  agent,  or  other  officer,  who  shall  willfully  sub- 
scribe, sign,  indorse,  verify,  or  otherwise  assent  to  the 
publication,  either  generally  or  privately,  to  the  stock- 
holders or  other  persons  dealing  with  such  corporation,  or 
its  stock,  any  untrue  or  willfully  and  fraudulently  exag- 
gerated report,  prospectus,  account,  statement  of  opera- 
tions, values,  business,  profits,  expenditures,  or  prospects, 
or  other  paper  or  document  intended  to  produce  or  give, 
or  having  a  tendency  to  produce  or  give,  to  the  shares  of 
stock  in  such  corporation  a  greater  value,  or  less  apparent 
or  market   value,   than  they   really   possess,   or   with   the 


710  APPENDIX. 

intention  of  defrauding  any  particular  person  or  persons, 
or  tlie  public,  or  persons  generally,  shall  be  deemed  guilty 
of  a  felony,  and  on  conviction  thereof  shall  be  punished 
by  imprisonment  in  the  state  prison  or  a  county  jail  not 
exceeding  two  years,  or  by  fine  not  exceeding  five  thou- 
sand dollars,  or  by  both;  provided,  that  this  act  shall  be 
construed  to  apply  only  to  corporations  whose  capital  stock 
has  been  or  shall  hereafter  be  listed  at  a  stock  board  or 
stock  exchange  in  this  state,  or  whose  shares  be  regularly 
bought  and  sold  in  the  stock  market  of  this  state. 

An  act  to  authorize  corporations  to  own  and  improve  the 

lots  and  houses  in  which  their  business  is  carried  on. 

[Approved  April  1,  1876;   1875-6,  653.] 

May  hold  lot,  etc. 

Section  1.  By  unanimous  consent  of  Its  members  or 
stockholders,  any  corporation  existing  under  the  laws 
of  this  state  may  acquire  and  hold  the  lot,  and  house  in 
which  its  business  is  carried  on,  and  may  improve  the 
same  to  any  extent  required  for  the  convenient  transaction 
of  its  business. 

Sec.  2.     This  act  shall  take  effect  immediately. 

Superseded  by  Civil  Code,  sec.  363. 

An  act  to  provide  the  manner  of  execution  of  deeds  by 

cemetery  corporations. 

[Approved  March  26,  1895;  Stats.  1895,  75.] 

The  people  of  the  state  of  California,  represented  in  sen- 
ate  and   assembly,   do   enact   as   follows: 

Section  1.  All  deeds  or  conveyances  executed  by  ceme- 
tery associations  or  incorporations  within  this  state,  shall 
be  executed  in  the  name  of  the  corporation  or  association, 
under  the  seal  thereof,  by  the  president,  or  vice-president, 
and  secretary  thereof. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this 
statute,  in  so  far  as  they  conflict  with  the  same,  are 
hereby  repealed. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 


CORPORATIONS.  711 

An  act  in  relation  to  foreign  corporations. 
(Approved  April  1,  1872;  Stats.  1871-2,  826.    Amended  1899, 

111.] 

Section  1.  Every  corporation  heretofore  created  by  the 
laws  of  any  other  state  or  foreign  country,  and  doing  busi- 
ness in  this  state,  shall  within  ninety  days  after  the  pas- 
sage of  this  act,  and  ahy  corporation  hereafter  created  by 
the  laws  of  any  other  state  or  foreign  country  and  doing 
business  in  this  state,  within  forty  days  from  the  time 
of  commencing  to  do  business  in  this  state,  designate  some 
person  residing  in  this  state,  upon  whom  process  issued 
by  authority  by  or  under  any  law  of  this  state,  may  be 
served,  and  within  the  time  aforesaid  shall  file  such  desig- 
nation in  the  office  of  the  secretary  of  state,  and  a  copy 
of  such  designation,  duly  certified  to  by  the  secretary  of 
state,  shall  be  sufficient  evidence  of  such  appointment  and 
of  the  due  incorporation  of  such  corporation,  and  it  shall 
be  lawful  to  serve  on  such  person  so  designated,  or  in 
event  that  no  such  person  is  so  designated,  then  on  the 
secretary  of  state,  any  process  issued  as  aforesaid.  Such 
service  shall  be  made  on  such  person  so  designated  or  the 
secretary  of  state,  in  such  manner  as  shall  be  prescribed 
in  case  of  service  required  to  be  made  on  foreign  corpora- 
tions, and  such  service  shall  be  deemed  a  valid  service 
thereof  on  such  corporation.  [Amendment  approved  March 
17,  1899;    Stats.  1899,  111.] 

Sec.  2.  Every  corporation  created  by  the  laws  of 
any  other  state  or  foreign  country  which  shall  fail  to 
comply  with  the  pi'ovisions  of  section  one  of  this  act  shall 
be  denied  the  benefit  of  the  laws  of  this  state  limiting  the 
time  for  the  commencement  of  civil  actions,  and  shall  not 
maintain  or  defend  any  action  or  proceeding  in  any  court 
of  this  state  until  such  corporation  shall  have  complied 
with  the  provisions  of  section  one  of  this  act;  and  in  any 
action  or  proceeding  instituted  against  a  body  styled  as 
a  corporation  and  created  by  the  laws  of  any  other  state  or 
foreign  country,  evidence  that  such  body  has  acted  as  a 
corporation  or  employed  methods  usually  employed  by 
corporations,  shall  be  received  by  the  court  in  such  action 
or  proceeding  for  the  purpose  of  pi'oving  the  existence 
of  such  corporation;  the  sufficiency  of  such  evidence  shall 
be  determined  by  the  court  before  whom  such  action  or 


712  APPENDIX. 

proceeding  is  pending  with  like  effect  as  in  other  cases; 
provided,  nevertheless,  that  any  corporation  which  shall 
have  complied  with  the  requirements  of  section  one  of  the 
act  of  which  this  is  amendatory,  shall  not  be  required  to 
make  or  file  any  further  designation  of  the  person  upon 
whom  process  may  be  served,  but  such  former  designation 
shall  be  deemed  and  taken  to  be  a  full  compliance  with 
the  requirements  of  this  act;  provided  further,  however, 
that  if  any  such  corporation  shall  withdraw  such  designa- 
tion heretofore  made,  or  if  the  person  designated  shall 
die,  or  remove  from  the  state,  then,  and  in  that  case  such 
corporation  shall  within  forty  days  after  such  withdrawal 
make  a  new  designation,  or  be  subject  to  the  provisions 
and  penalties  of  this  act.  [Amendment  approved  March 
17,  1899;   Stats.  1899,  111.] 

Section  3.  Every  corporation  created  by  the  laws  of 
any  other  state  or  foreign  country  which  shall  comply 
with  the  provisions  of  section  one  of  this  act  shall  be  en- 
titled to  the  benefit  of  the  laws  of  this  state  limiting  the 
time  for  the  commencement  of  civil  actions.  [Amendment 
approved  March  17,  1899;    Stats.  1899,  111.] 

An  act  requiring  corporations  organized  under  the  laws  of 
another  state,  territory,  or  foreign  country,  to  file  a 
certified  copy  of  their  articles  of  incorporation  in  the 
office  of  the  secretary  of  state,  and  a  certified  copy 
thereof,  duly  certified  by  the  secretary  of  state  of  this 
state,  in  the  office  of  the  county  clerk  of  the  county 
where  its  principal  place  of  business  is  located  and 
also  where  such  corporation  owns  property,  and  re- 
quiring such  corporation  to  pay  to  the  secretary  of 
state  the  same  fees  as  are  paid  by  corporations  formed 
under  the  laws  of  the  state  of  California,  and  providing 
for  a  penalty  for  the  violation  of  the  provisions  of  this 
act. 

[Approved  March  8,  1901,  p.  108.] 

§  1.     Foreign  corporations  must  file  certified  copies  of  articles. 

§   2.      Fees. 

§  3.     Penalty  for  failure  to  comply. 

Foreign  corporations  must  file  certified  copies  of  articles. 

Section  1.     Corporations    organized    under    the    laws   ol 

another  state,  territory,  or  of  a  foreign  country,  which  are 


CORPORATIONS.  713 

now  doing  business  in  this  state,  or  which  shall  hereafter 
enter  this  state  to  do  business,  or  maintain  an  office  in  this 
state,  shall  file  in  the  office  of  the  secretary  of  state  of  the 
state  of  California  a  certified  copy  of  their  articles  of  in- 
corporation, or  of  their  charters  or  of  the  statutes  or 
legislative  or  executive  or  governmental  act  creating  them 
in  cases  where  they  are  created  by  charters  or  statutes  or 
legislative  or  executive  or  governmental  acts,  and  a  certi- 
fied copy  thereof,  duly  certified  by  the  secretary  of  state 
of  thisstate,  in  the  office  of  the  county  clerk  of  the  county 
wher^ts  principal  place  of  business  is  located  and  also 
where  such  corporation  owns  property. 

Fees. 

Sec.  2.  For  filing  and  issuing  certified  copy  as  required 
in  section  one  of  this  act,  corporations  formed  under  the 
laws  of  another  state,  or  of  a  territory,  or  of  a  foreign  coun- 
try, shall  pay  the  same  fees  as  are  paid  by  corporations 
formed  under  the  laws  of  this  state. 

Penalty  for  failure  to  comply. 

Sec.  3.  Every  foreign  corporation  amenable  to  the  pro- 
visions of  this  act  which  shall  neglect  or  fail,  within  ninety 
days  from  the  date  of  passage  of  this  act,  to  comply  with 
the  conditions  of  the  same  as  herein  provided  shall  be  sub- 
ject to  a  fine  of  not  less  than  five  hundred  dollars,  to  be 
recovered  before  any  court  of  competent  jurisdiction;  and 
It  is  hereby  made  the  duty  of  the  secretary  of  state,  as  he 
may  be  advised  that  corporations  are  doing  business  in 
contravention  of  this  act,  to  report  the  fact  to  the  gov- 
ernor, who  shall  instruct  the  district  attorney  of  the  county 
wherein  such  corporation  has  its  principal  business,  or  the 
attorney-general  of  the  state,  or  both,  as  soon  as  practica- 
ble, to  institute  proceedings  to  recover  the  fine  herein 
provided  for,  and  the  amount  so  recovered  must  be  paid 
into  the  state  treasury  to  the  credit  of  the  general  fund 
of  the  state;  in  addition  to  which  penalty,  no  foreign  cor- 
poration as  above  defined  which  shall  fail  to  comply  with 
this  act.  can  maintain  any  suit  or  action,  either  legal  or 
equitable,  in  any  of  the  courts  of  this  state  upon  any  de- 
mand, whether  arising  out  of  contract  or  tort,  until  it  has 
complied  with  this  act;  provided,  that  any  corporation 
described  in  section  one  of  this  act,  which  is  now  doing 


714  APPENDIX. 

business  in  this  state,  and  whicli  has  complied  with  the 
act  in  relation  to  foreign  corporations,  approved  April 
first,  eighteen  hundred  and  seventy-two,  and  an  act  amenda- 
tory thereof,  approved  March  seventeenth,  eighteen  hun- 
dred and  ninety-nine,  is  exempted  from  the  provisions  of 
this  act. 

Sec.  4.    This  act  shall  take  effect  and  be  in  force  from 
and  after  the  date  of  its  passage. 


DEEDS. 

An  act  relating  to  conveyances  of  real  estate. 

[Approved  March  11,  1874;   1873-4,  345.] 

§  1.     Conveyances  by  persons  whose  names  are  changed. 
§  2.     Record  of  conveyances  made  by  public  ofiBcers. 
§  3.     Indexing  conveyances. 

Conveyances  by  persons  whose  names  are  changed. 

Section  1.  Any  person  in  whom  the  title  of  real  estate 
is  vested  who  shall  afterwards,  from  any  cause,  have  his 
or  her  name  changed,  shall,  in  any  conveyances  of  said 
real  estate  so  held,  set  forth  the  name  in  which  he  or  she 
derived  title  to  said  real  estate. 

Record  of  conveyances  made  by  public  oflBcers. 

Sec.  2.  All  conveyances  of  real  estate,  except  patents 
issued  by  the  state  as  a  party,  made  by  any  public  officer 
pursuant  to  any  law  of  this  state,  shall,  when  recorded  by 
the  county  recorder,  be  by  him  alphabetically  indexed  in 
the  "index  of  grantors,"  both  in  the  name  of  the  officer 
making  such  sale  and  in  the  name  of  the  person  owning 
the  property  so  sold.  , 

Indexing  of  such  conveyances. 

Sec.  3.  It  is  hereby  made  the  duty  of  all  county  re- 
corders to  alphabetically  index  in  the  "index  of  grantors," 
both  in  the  name  by  which  title  was  acquired  and  also 
by  which  the  same  was  conveyed,  all  conveyances  referred 
to  in  section  one  of  this  act. 

Sec.  4.  This  act  shall  be  in  force  from  and  after  its 
passage. 


FIRE    PATROL.  715 

FIRE    PATROL. 

An  act  to  confer  certain  powers  upon  corporations,  organ- 
ized for  the  purpose  of  discovering  and  preventing 
fires,  and  of  saving  property  and  tiuman  life-  from 
conflagration. 

f  Approved  April  1,  1876;  1875-6,  689.     Amended  1897,  223.] 

§  1.     Power  to  equip  and  employ  men  as  flre  patrol. 

§   2.      Privileges   granted  to  corps. 

§  3.      Costs  and  expenses  of  organization. 

Power  to  equip  and  employ  men  as  flre  patrol. 

Section  1.  Any  corporation  of  underwriters  heretofore 
organized  and  now  existing  or  which  may  be  hereafter 
organized  under  the  laws  of  this  state,  for  the  purpose 
of  discovering  and  preventing  flres  and  of  saving  property 
and  human  life  from  conflagration,  and  doing  business 
within  any  municipal  corporation  of  this  state,  shall  have 
power,  at  its  own  proper  cost  and  expense,  to  maintain 
a  corps  of  men,  with  proper  oflicers,  equipped  with  the 
necessary  machinery  and  apparatus  therefor,  whose  duty 
it  shall  be,  so  far  as  practicable,  to  discover  and  prevent 
fires  and  save  property  and  human  life  from  conflagration; 
and  for  the  effective  discharge  of  such  duties,  power  and 
authority  is  hereby  granted  such  corps  to  enter  any  build- 
ing on  fire,  or  in  which  property  is  on  fire,  or  which  such 
corps  or  any  oflicer  thereof  shall  deem  to  be  immediately 
exposed  to  any  existing  fire,  or  in  danger  of  taking  fire 
from  a  burning  building,  and  to  remove  or  otherwise  save 
and  protect  from  conflagration  or  damage  by  water  any 
property,  during  and  immediately  after  such  flre;  provided, 
however,  that  nothing  in  this  act  shall  be  so  construed  as 
in  any  degree  to  lessen,  impair,  or  interfere  with  the 
powers,  privileges,  duties,  or  authority  of  the  regular  flre 
department  of  such  municipality;  and  provided  further, 
that  no  act  of  such  ccfrps  shall  justify  any  owner  of  any 
building  or  property  in  abandoning  such  building  or  prop- 
erty. 

Privileges  granted  to  fire  patrol  corps. 

Sec.  2.  Such  corporation,  with  its  officers  and  corps, 
when  running  to  a  flre,  shall,  with  its  horses,  vehicles, 
and  salvage  apparatus,  have  the  same  right  of  way  as  is 


716  APPENDIX, 

or  may  be  bestowed  by  any  ordinance  of  the  municipality 
or  law  of  this  state  upon  the  regular  fire  department  of  the 
municipality  wherein  such  corporation  is  acting;  provided, 
that  the  rights  of  such  fire  department  shall  always  be 
paramount  to  the  rights  of  said  corpoi'ation.  All  ordinances 
now  existing  or  which  may  hereafter  be  passed  by  the 
municipal  authorities  of  any  city  and  county,  or  of  any 
incorporated  city  or  town  wherein  such  a  corporation  may 
carry  on  business,  and  all  laws  of  this  state  applicable  to 
such  city  and  county,  or  city  or  town,  for  the  conviction 
or  punishment  of  any  person  or  persons  willfully  or  care- 
lessly obstructing  the  progress  of  the  apparatus  of  the  fire 
department  of  such  city  and  county,  or  city  or  town, 
while  going  to  a  fire,  or  of  any  person  or  persons  will- 
fully or  carelessly  injuring  any  animal  or  property  of  said 
fire  department,  shall  be  equally  applicable  to  any  person 
or  persons  willfully  or  carelessly  obstructing  the  progress 
of  the  apparatus  of  such  corporation  while  going  to  a  fire, 
and  to  any  person  or  persons  who  shall  willfully  or  care- 
lessly injure  any  animal  or  property  of  such  corporation; 
and  said  laws  and  ordinances,  and  their  penalties,  may  be 
enforced  in  the  same  courts  and  in  the  same  manner,  and 
with  equal  force  and  effect,  as  in  the  case  of  the  fire  depart- 
ment. 

Costs  and  expenses  of  organization. 

Sec.  3.  In  the  month  of  July,  eighteen  hundred  and 
ninety-seven,  and  in  the  month  of  July  in  every  year 
thereafter,  there  shall  be  held  a  meeting  of  all  corporations 
heretofore  created,  or  that  may  be  hereafter  created,  under 
this  act,  of  which  ten  days'  previous  notice  shall  be  in- 
serted in  at  least  one  daily  newspaper  published  in  the 
municipality  where  said  corporation  is  organized  or  estab- 
lished, at  which  meeting  each  insurance  company,  corpora- 
tion, association,  underwriter,  agent,  person,  or  persons  do- 
ing a  fire  insurance  business  in  said  municipality,  wnether 
members  of  said  corporation  or  not,  shall  Lave  a  right  to 
be  represented  at  such  meeting,  and  shall  be  entitled  to 
one  vote.  A  majority  of  the  whole  number  so  represented 
shall  have  power  to  decide  upon  the  question  of  sustaining 
the  fire  patrol  organized  by  corporations  heretofore  created, 
or  that  may  be  hereafter  created,  under  this  act,  and  fixing 
the  maximum  amount  of  expenses  which  shall  be  incurred 


FIRE    PATROL.  717 

therefor  during  the  fiscal  year  next  to  ensue,  which 
amount  shall  in  no  case  exceed  two  per  centum  of  the 
aggregate  premiums  returned  as  received,  as  provided  in 
this  section,  and  the  whole  of  such  amount,  or  so  much 
thereof  as  may  he  necessary,  may  be  assessed  upon  all 
insurance  companies,  corporations,  associations,  under- 
writers, agents,  person,  or  persons  who  assume  risks  and 
accept  premiums  for  fire  insurance  in  said  municipality, 
as  hereinbefore  mentioned,  in  proportion  to  the  several 
amounts  of  premiums  returned,  as  received  by  each,  as 
hereinafter  provided,  and  such  assessment  shall  be  col- 
lectible, by  and  in  the  name  of  said  corporation,  in  any 
court  of  law  in  the  state  of  California  having  jurisdiction, 
in  such  manner  and  at  such  time  or  times  as  said  corpora- 
tion may  determine.  In  order  to  provide  for  the  payment 
of  persons  employed  by  said  corporation,  and  to  maintain 
suitable  room.s,  and  apparatus  for  saving  life  and  property 
contemplated,  said  corporation  is  empowered  to  require  a 
statement  to  be  furnished  semi-annually,  by  all  insurance 
companies,  corporations,  associations,  underwriters,  agents, 
or  persons,  of  the  aggregate  amount  of  premiums  received 
for  insuring  property  in  the  municipality  where  said  cor- 
poration is  organized  or  established,  for  and  during  the 
six  months  next  preceding  the  first  day  of  July  and  the 
first  day  of  January  of  each  year,  which  statement  shall 
be  sworn  to  by  the  president  or  secretary  of  the  corpora- 
tion or  association,  or  by  the  agent  or  person  so  acting 
or  effecting  such  insurance  in  said  municipality,  and  shall 
be  handed  to  the  secretary  of  said  corporation  heretofore 
created  or  hereafter  to  be  created  under  the  provision  of 
this  act  within  ten  days  after  the  first  day  of  July  and  the 
first  day  of  January  of  each  year.  Said  secretary  shall, 
within  the  ten  days  aforesaid,  by  written  or  printed  de- 
mand signed  by  him,  require  from  every  insurance  com- 
pany, corporation,  association,  underwriter,  agent,  or  per- 
sons engaged  in  the  business  of  fire  insurance  in  the 
municipality  where  said  corporation  is  organized  or  estab- 
lished, the  statement  hereinbefore  provided  for.  guch  de- 
mand may  be  delivered  personally  at  the  oflice  of  such 
insurance  company,  corporation,  association,  underwriter, 
agent  or  person  within  said  municipality,  and  every  ofiicer 
of  such  insurance  company,  corporation,  association,  and 


718  APPENDIX. 

every  such  underwriter,  agent  or  person  who  shall,  for 
fifteen  days  after  said  demand,  neglect  to  render  the 
statement  herein  provided  for,  shall  forfeit  fifty  aollars 
for  the  use  of  said  corporation,  and  he  shall  also  forfeit 
for  its  use  twenty-five  dollars  in  addition  for  every  day 
he  shall  so  neglect  after  the  expiration  of  the  said  fifteen 
days,  and  such  additional  penalty  may  be  computed  and 
collected  up  to  the  time  of  the  trial  of  any  action  brought 
for  the  recovery  thereof.  The  penalty  herein  provided  for 
may  be  sued  for  and  collected,  with  costs,  in  any  court 
of  law  within  the  state  of  California  having  jurisdiction,  by 
and  in  the  name  of  said  corporation.  [Amendment  ap- 
proved  March  29,   1897;    Stats.   1897,  p.   223.] 


GUARDIANS. 

Act  providing  for  appointment  of  guardians  of  children 
in  orphan  asylums:     See  post,  title  Infancy. 


HOMESTEADS. 

An  act  to  enable  certain  parties  therein  named  to  alienate 
or  incumber  homesteads. 

[Approved  March  25,  1874;    1873-4,   582.] 

§  1.  Alienation  of. 

§  2.  Notice  of  application. 

I  3.  Petition. 

§  4.  Order   and  effect.  ' 

§  5.  Fees. 

Alienation  of  homestead. 

Section  1.  In  case  of  a  homestead,  if  either  the  husband 
or  wife  shall  become  hopelessly  insane,  upon  application 
of  the  husband  or  wife,  not  insane,  to  the  probate  court 
of  the  county  in  which  said  homestead  is  situated,  and 
upon  due  proof  of  such  insanity,  the  court  may  make  an 
order  permitting  the  husband  or  wife,  not  insane,  to  sell 
and  convey,  or  mortgage,  such  homestead. 

Notice  of  application. 

Sec.  2.  Notice  of  the  application  for  such  order  shall 
be  given  by  publication  of  the  same,  in  a  newspaper  pub- 
lished in  the  county  in  which  such  homestead  is  situated, 
if   there    be    a   newspaper    published    therein,    once    each 


HOMESTEADS.  719 

week  for  three  successive  weeks,  prior  to  the  hearing  of 
such  application,  and  a  copy  of  such  notice  shall  also  be 
served  upon  the  nearest  male  relative  of  such  insane  hus- 
band or  wife,  resident  in  this  state,  at  least  three  weeks 
prior  to  such  application;  and  in  case  there  be  no  such 
male  relative  known  to  the  applicant,  a  copy  of  such  notice 
shall  be  served  upon  the  public  administrator  of  the  county 
in  which  such  homestead  is  situated;  and  it  is  hereby 
made  the  duty  of  such  public  administrator,  upon  being 
served  with  a  copy  of  such  notice,  to  appear  in  court  and 
see  that  such  application  is  made  in  good  faith,  and  that 
the  proceedings  thereon  are  fairly  conducted. 

Petition. 

Sec.  3.  Thirty  days  before  the  hearing  of  any  applica- 
tion under  the  provisions  of  this  act,  the  applicant  shall 
present  and  file  in  the  court  in  which  such  application  is 
to  be  heard  a  petition  for  the  order  mentioned  in  the  first 
section  of  this  act,  subscribed  and  sworn  to  by  the  appli- 
cant, setting  forth  the  name  and  age  of  the  insane  husbr.iid 
or  wife;  the  number,  age,  and  sex  of  the  children  of  such 
insane  husband  or  wife;  a  description  of  the  premises 
constituting  the  homestead;  the  value  of  the  same;  the 
county  in  which  it  is  situated;  and  such  facts  in  addition 
to  that  of  the  insanity  of  the  husband  or  wife  relating 
to  the  circumstances  and  necessities  of  the  applicant  and 
his  or  her  family  as  he  or  she  may  rely  upon  in  support 
of  the  petition. 

Order  and  effect. 

Sec.  4.  If  the  court  shall  make  the  order  provided 
for  in  the  first  section  of  this  act,  the  same  shall  be  entered 
upon  the  minutes  of  the  court,  and  thereafter  any  sale, 
conveyance,  or  mortgage  made  in  pursuance  of  such  order 
shall  be  as  valid  and  effectual  as  if  the  property  affected 
thereby  was  the  absolute  property  of  the  person  making 
such  sale,  conveyance,  or  mortgage,  in  fee  simple. 

Fees. 

Sec.  5.  For  all  services  rendered  by  any  public  admin- 
istrator under  the  provisions  of  this  act  he  shall  be  allowed 
a  fee  not  exceeding  twenty  dollars,  to  be  fixed  by  the  court, 
and  the  same  shall  be  taxed  as  costs  against  the  person 
making  application  for  the  order  herein  provided  for. 


720  APPENDIX. 

Sec.  6.     All  acts  and  parts  of  acts  in  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Sec.  7.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

An  act  supplementary  to  an  act  entitled  "An  act  to  au- 
thorize the  formation  of  corporations  to  provide  the 
members  thereof  with  homesteads,  or  lots  of  land  suit- 
able for  homesteads,"  approved  May  twentieth,  eigh- 
teen hundred  and  sixty-one. 

[Approved  March  23,  1874;  1873-4,  525.] 

§  1.     Extension  of  time  for  homestead  corporations, 
I  2.     How  existence  continued. 

Extension  of  time  for  homestead  corporations. 

Section  1.  'Any  corporation  formed  under  the  act  to 
which  this  act  is  supplemental,  whose  period  of  existence 
is  not  stated  in  its  articles  of  incorporation  to  be  ten 
years,  may  continue  its  corporate  existence  for  ten  years 
from  the  date  of  filing  its  articles  of  incorporation,  upon 
complying  with  the  provisions  of  this  act. 
How  existence  continued. 

Sec.  2.  Any  such  corporation  existing  on  the  first  day 
of  January,  eighteen  hundred  and  seventy-four,  may,  at 
any  time  before  its  period  of  existence,  as  stated  in  its 
articles  of  incorporation,  shall  expire,  continue  its  exist- 
ence, as  stated  in  section  one  of  this  act,  by  a  majority 
vote  of  its  board  of  trustees  at  any  meeting  of  such  board, 
or  by  a  vote  of  a  majority  of  the  stockholders,  as  the 
board  of  trustees  may  elect.  A  certificate  of  the  action 
of  the  directors,  signed  by  them  and  their  secretary,  when 
the  election  is  made  by  their  vote,  or  upon  the  written 
consent  of  the  stockholders  or  members,  or  a  certificate 
of  the  proceedings  of  the  meeting  of  the  stockholders  or 
members,  when  such  election  is  made  at  any  such  meeting, 
signed  by  the  chairman  and  secretary  of  the  meeting  and 
a  majority  of  the  directors,  must  be  filed  in  the  office 
of  the  clerk  of  the  county  where  the  original  articles 
of  incorporation  are  filed,  and  a  certified  copy  thereof 
must  be  filed  in  the  office  of  the  secretary  of  state;  and 
thereafter  the  corpoi'ation  shall  continue  its  existence  un- 


HOMESTEADS— INFANCY.  721 

der  the  provisions  of  this  act,  and  shall  possess  all  the 
rights  and  powers,  and  be  subject  to  all  the  obligations, 
restrictions,  and  limitations  prescribed  by  the  act  of  which 
this  is  supplementary. 

Sec.  3.    This  act  shall  take  effect  from   and  after  its 
passage. 


INFANCY. 

An  act  to  regulate  the  hours  of  labor  and  employment  of 

minors. 

[Approved   February   8,   1889;    1889,   4.] 

§  1.  Employment  of  minors. 

§  2.  Age  of  minor  to  be  recorded. 

§  3.  Notice  of  hours  of  labor  to  be  posted. 

§  4.  Violation  and  penalty. 

§  5.  Duty  of  commissioner. 

Employment  of  minors. 

Section  1.  No  minor  under  the  age  of  eighteen  shall 
be  employed  in  laboring  in  any  manufacturing,  mechanical, 
or  mercantile  establishment,  or  other  place  of  labor,  more 
than  ten  hours  in  one  day,  except  when  it  is  necessary  to 
make  repairs  to  prevent  the  interruption  of  the  ordinary 
running  of  the  machinery,  or  when  a  different  apportion- 
ment of  the  hours  of  labor  is  made  for  the  sole  purpose 
of  making  a  shorter  day's  work  for  one  day  of  the  week; 
and  in  no  case  shall  the  hours  of  labor  exceed  sixty  hours 
in  a  week. 
Age  of  minor  to  be  recorded. 

Sec.  2.  No  child  under  ten  years  of  age  shall  be  em- 
ployed in  any  factory,  workshop,  or  mercantile  establish- 
ment; and  every  minor  under  sixteen  years  of  age  when 
so  employed  shall  be  recorded  by  name  in  a  book  kept 
for  the  purpose,  and  a  certificate  (duly  verified  by  his  or 
her  parent  or  guardian,  or  if  the  minor  shall  have  no  parent 
or  guardian,  then  by  such  minor,  stating  age  and  place 
of  birth  of  such  minor)  shall  be  kept  on  file  by  the  em- 
ployer, which  book  and  which  certificate  shall  be  produced 
by  him  or  his  agent  at  the  requirement  of  the  commissioner 
of  the  bureau  of  labor  statistics. 
Notice  of  hours  of  labor  to  be  posted. 

Sec.  3.     Every  person  or  corporation  employing  minora 
Civ.  Code— 31 


722  APPENDIX. 

under  sixteen  years  of  age  in  any  manufacturing  establish- 
ment shall  post,  and  keep  posted,  in  a  conspicuous  place 
in  every  room  where  such  help  is  employed,  a  printed  no- 
tice stating  the  number  of  hours  per  day  for  each  day  of 
the  week  required  of  such  persons,  and  in  every  room 
where  minors  under  sixteen?  years  of  age  are  employed,  a 
list  of  their  names,  with  their  ages. 

Violation  and  penalty. 

Sec.  4.  Any  person  or  corporation  that  knowingly  vio- 
lates or  omits  to  comply  with  any  of  the  foregoing  pro- 
visions of  this  act,  or  who  knowingly  employs,  or  suffers 
or  permits  any  minor  to  be  employed,  in  violation  thereof, 
shall,  on  conviction,  be  punished  by  a  fine  of  not  less  than 
fifty  nor  more  than  two  hundred  dollars  for  each  and 
every  offense. 

Duty  of  commissioner. 

Sec.  5.  It  shall  be  the  duty  of  the  commissioner  of  the 
bureau  of  labor  statistics  to  enforce  the  provisions  of  this 
act. 

Sec.  6.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

This  act  is  probably  superseded  by  the  following  act: 

An  act  to  regulate  the  employment,  hours  of  labor,  etc., 
of  children,  and  to  prohibit  the  employment  of  minors 
under  a  certain  age. 

[Approved  March  23,  1901;  1901,  p.  631. J 

§  1.  Hours  of  labor  of  children. 

§  2.  Under  twelve  must  not  be  employed. 

§  3.  Notice  to  be  posted,  what  must  contain. 

§  4.  Penalty  for  violation. 

Hours  of  labor  for  children. 

Section  1.  No  minor  under  the  age  of  eighteen  shall  be 
employed  in  laboring  in  any  manufacturing,  mechanical 
or  mercantile  establishment,  or  other  place  of  labor,  more 
than  nine  hours  in  one  day,  except  when  it  is  necessary 
to  make  .repairs  to  prevent  the  interruption  of  the  ordinary 
running  of  the  machinery,  or  when  a  different  apportion- 
ment of  the  hours  of  labor  is  made  for  the  sole  purpose  of 
making  a  shorter  day's  work  for  one  day  of  the  week;  and 


INFANXT.  723 

in  no  case  shall  the  hours  of  labor  exceed  fifty-four  hours 

in  a  week. 

Under  twelve  years  must  not  be  employed. 

Sec.  2.  No  child  under  twelve  years  of  age  shall  be 
employed  in  any  factory,  workshop  or  mercantile  establish- 
ment, and  evei-y  minor  under  sixteen  years  of  age  when  so 
employed  shall  be  recorded  by  name  in  a  book  kept  for  the 
purpose,  and  a  certificate  (duly  verified  by  his  or  her  parent 
or  guardian,  or  if  the  minor  shall  have  no  parent  or  guar- 
dian, then  by  such  minor,  stating  .age  and  place  of  birth 
of  such  minor)  shall  be  kept  on  file  by  the  employer, 
which  book  and  which  certificate  shall  be  produced  by  him 
or  his  agent  at  the  requirement  of  the  commissioner  of 
the  bureau  of  labor  statistics. 
Notice  to  be  posted,  what  must  contain. 

Sec.  3.  Every  person  or  corporation  employing  minors 
under  sixteen  years  of  age  in  any  manufacturing  estab- 
lishment, shall  post  and  keep  posted  in  a  conspicuous 
place  in  every  room  where  such  help  is  employed,  a  print- 
ed notice  stating  the  number  of  hours  per  day  for  each 
day  of  the  week  required  of  such  persons,  and  in  every 
room  where  minors  under  sixteen  years  of  age  are  em- 
ployed, a  list  of  their  names,  with  their  ages. 
Penalty  for  violation. 

Sec.  4.  Any  person  or  corporation  that  knowingly  vio- 
lates or  omits  to  comply  with  any  of  the  foregoing  pro- 
visions of  this  act,  or  who  knowingly  employs,  or  suffers 
or  permits  any  minor  to  be  employed,  in  violation  thereof, 
shall,  on  conviction,  be  punished  by  a  fine  of  not  less  than 
fifty  nor  more  than  two  hundred  dollars,  or  by  imprison- 
ment of  not  more  than  sixty  days,  or  by  both  such  fine 
and  imprisonment,  for  each  and  every  offense. 

Sec.  5.  This  act  shall  take  effect  sixty  days  after  its 
passage. 

An  act  to  provide  for   the   appointment  of  guardians   of 
children  maintained  in  any  orphans'  home  or  orphan 
asylum  in  this  state. 
[Approved    March    23,    1893;    Stats.    1S93,   203.] 

Section  1.  When  any  orphan  or  half-orphan  has  been 
maintained  in  any  orphans'   asylum  or  orphans'  home  in 


724  APPENDIX. 

the  state  of  California  for  more  than  one  year,  the  man- 
agers of  said  home  or  asylum  shall  be  entitled  to  the 
guardianship  of  such  child  in  preference  to  any  other  per- 
son; provided,  however,  that  such  managers  shall  not 
be  appointed  guardian  of  a  minor  child  over  fourteen  years 
of  age  without  its  consent,  nor  shall  this  act  preclude  the 
court  of  competent  jurisdiction  from  inquiring  into  the 
fitness  of  such  managers  for  the  guardianship  of  such 
children;  but  in  exercising  the  power  of  the  court  to  ap- 
point guardians  for  minors,  the  managers  of  the  home  hav- 
ing the  care  of  such  child  for  more  than  one  year  shall, 
if  there  be  no  special  reasons  to  the  contrary  in  any  par- 
ticular case,  be  preferred  in  the  guardianship  of  the  person 
of  the  child  to  the  parent  so  leaving  the  child,  without 
good  cause  therefor  being  shown,  under  the  care  of  said 
home  for  the  said  time. 

Sec.  2.     This   act  shall   take   effect   immediately. 

Statute  prohibiting  use  of  child  for  exhibitions,  immoral 
purposes,  soliciting  alms,  etc.:  See  Penal  Code,  Appendix, 
title  Infancy. 

Begging  by  minor  to  be  restrained:  See  Penal  Code,  Ap- 
pendix, title  Infancy. 

Act  for  incorporation  of  societies  for  prevention  of  cru- 
elty to  children:     See  Penal  Code,  Appendix,  title  Infancy. 

Minors  not  to  enter  saloon:  See  Penal  Code,  Appendix, 
title  Infancy. 

Act  to  prevent  sale  of  intoxicants  to  minor:  See  Penal 
Code,  Appendix,  title  Intoxicating  Liquors. 

Child  not  to  be  confined  with  adult  charged  with  crime: 
See  Penal  Code,  Appendix,  title  Infancy. 


INSURANCE. 
Fire  patrol:     See  ante,  p.  715. 
An  act  relating  to  life,  health,  accident,   and   annuity  or 
endowment   insurance   on   the    assessment    plan,    and 
the  conduct  of  the  business  of  such  insurance. 
[Approved  March  19,  1891;   Stats.  1891,  p.  126.] 

§  1.  Construction  of  contract. 

§  2.  Formation   of   corporation— Deposit— Certificate. 

§  3.  Reincorporation. 

§  4.  Contracts — Liens — Payments. 


INSURANCE,  725 

§    5.  Reserve  fund— Investments. 

§    6.  Requirements   from  foreign   corporations — License. 

§    7.  Limitations  as  to  age— Certificate— False  statements. 

§    8.  Exemption  from   attachment. 

§    9.  Annual  statement. 

§  10.  Duty  of  commissioner. 

1 11.  Lapses — Notice  of  assessment. 

§  12.  Fees. 

§  13.  Expenses  of  prosecution. 

§  14.  No  application  to  secret  societies. 

Section  1.  Every  contract  whereby  a  benefit  may  ac- 
crue to  a  party  or  parties  therein  named  upon  the  death 
or  physical  disability  of  a  person  insured  thereunder  or 
for  the  payment  of  any  sums  of  money  dependent  in  any 
degree  upon  the  collection  of  assessments  or  dues  from 
persons  holding  similar  contracts  shall  be  deemed  a  con- 
tract of  mutual  insurance  upon  the  assessment  plan.  Such 
contracts  must  show  that  the  liabilities  of  the  insured 
thereunder  are  not  limited  to  fixed  premiums. 

Sec.  2.  Corporations  may  be  formed  under  the  general 
laws  of  this  state  to  carry  on  the  business  of  mutual  in- 
surance upon  the  assessment  plan,  and  shall  be  subject 
only  to  the  provisions  of  this  act.  No  such  corporations 
shall  issue  contracts  of  insurance  until  at  least  two  hun- 
dred (200)  persons  have  applied  in  writing  for  member- 
ship or  insurance  therein,  and  have  paid  to  the  treasurer' 
of  such  corporation  the  sum  of  five  thousand  (55,000)  dol- 
lars. This  sum  shall  be  invested  in  bonds  or  securities, 
approved  by  the  insurance  commissioner  of  this  state,  or 
deposited  in  some  bank  in  this  state  where  it  will  earn 
interest.  Said  bonds,  or  securities,  or  evidences  of  such 
deposit,  shall  be  placed,  through  the  insurance  commis- 
sioner of  this  state,  with  the  state  treasurer,  and  the  prin- 
cipal sum  shall  be  held  in  trust  for  the  contract-holders 
of  such  corporation,  with  the  right  in  the  corporation  to 
exchange  said  bonds,  securities,  or  evidence  of  bank  de- 
posit for  others  of  like  value.  Such  corporation  shall  also, 
as  a  condition  precedent  to  issuing  any  contracts  of 
insurance,  obtain  the  written  certificate  of  the  insurance 
commissioner  that  it  has  complied  with  the  requirements 
of  this  act;  and  that  the  name  of  the  corporation  is  not 
the  same  as  that  of  any  other  corporation  of  this  or  other 
states,  as  indicated  by  the  insurance  department  reports 
in  his  oflice;  nor  shall  the  commissioner  approve  any 
name  or  title  so  closely  resembling  another  as  to  mislead 


726  APPENDIX. 

the  public.  No  corporation  formed  hereunder  shall  have 
legal  existence  after  one  year  from  the  date  of  its  articles, 
unless  its  organization  has  been  completed  and  business 
commenced;  nor  shall  any  corporation  or  individual  solicit, 
or  cause  to  be  solicited,  any  business,  until  such  corpora- 
tion shall  have  complied  with  the  provisions  of  section  six 
hundred  and  thirty-three  of  the  Political  Code  of  this  state. 

Sec.  3.  Any  existing  corporation  engaged  in  transact- 
ing the  business  of  life,  health,  accident,  or  endowment 
insurance  on  the  assessment  plan,  may  reincorporate  under 
the  provisions  of  the  Civil  Code  of  this  state,  and  under 
the  provisions  of  this  act;  provided,  that  it  shall  not  be 
obligatory  upon  such  corporation  to  reincorporate;  and 
any  such  existing  corporation  may  continue  to  exercise 
all  rights,  powers,  and  privileg'es  conferred  by  this  act,  the 
same  as  if  incorporated  hereunder. 

Sec.  4.  The  contracts  of  insurance  issued  by  such  cor- 
poration shall  specify  the  sum  or  sums  to  be  paid  upon  the 
happening  of  the  contingency  insured  against,  and  when 
such  payments  will  be  made.  Unless  the  contract  shall 
have  been  invalidated  by  fraud  or  by  breach  of  its  con- 
ditions, the  corporation  shall  be  obligated  to  pay  the 
beneficiary  the  amount  or  amounts  specified  in  its  con- 
tract at  the  time  or  times  therein  named,  and  such  in- 
debtedness shall  be  a  lien  upon  all  the  property  of  such 
corporation,  with  priority  over  all  indebtedness  tnereafter 
incurred,  except  as  hereinafter  provided  in  case  of  in- 
solvency. Failure  to  make  such  payment,  within  thirty 
days  after  notice,  at  the  home  ofllce,  by  mail,  as  provided 
by  law,  of  final  judgment,  unless  waiver  is  made  by  the 
beneficiary,  shall  constitute  a  forfeiture  of  the  right  to  do 
business. 

Sec.  5.  Every  domestic  corporation  organized  or  doing 
business  under  this  act  shall  accumulate  a  reserve  or 
emergency  fund,  which  shall  at  all  times  be  not  less  than 
the  largest  benefit  contracted  to  be  paid  by  it  to  any  one 
person.  Every  existing  domestic  corporation  must  ac- 
cumulate such  fund  within  one  year  from  the  date  when 
this  act  takes  effect,  and  any  corporation  organized  here- 
under, within  one  year  from  the  date  of  its  certificate  of 
incorporation.  Such  fund,  to  the  extent  of  the  largest 
amount  contracted  to  be  paid  by  any  such  corporation  to 


INSURANCE.  727 

any  one  person,  shall  be  so  invested  and  deposited,  as 
provided  in  section  two  hereof,  with  the  right  in  the  cor- 
poration to  exchange  any  such  securities  for  others  of 
equal  value.  The  deposit  required  by  section  two  of  this 
act  shall  constitute  a  part  of  the  reserve  required  by  this 
section,  at  the  option  of  such  corporation.  When  any  cor- 
poration doing  business  hereunder  shall  discontinue  busi- 
ness, this  fund  shall  be  returned  to  such  corporation,  or 
so  disposed  of  as  may  be  determined  by  the  superior 
court  of  the  county  or  city  and  county  in  which  is  its 
principal  place  of  business. 

Sec.  6.  Corporations  organized  under  the  laws  of  any 
other  state  or  country  to  transact  the  business  of  mutual 
assessment  insurance  must,  as  a  condition  precedent  to 
transacting  business  in  this  state,  deposit  with  the  insur- 
ance commissioner  of  this  state  a  certified  copy  of  its 
charter  or  other  instrument  required  by  its  home  authori- 
ties; a  statement  under  oath,  of  its  president  or  secretary, 
of  its  business  for  the  preceding  year,  in  such  form  as  may 
be  required  by  the  insurance  commissioner  of  this  state; 
an  appointment  of  a  general  agent,  service  upon  whom 
shall  bind  the  corporation;  a  certificate  that  for  the  next 
preceding  twelve  months  it  has  paid  in  full  the  maximum 
amount  named  in  its  contracts  of  insurance;  a  certificate 
from  the  proper  officer  of  its  state  or  government  that  like 
corporations  of  this  state  are  legally  entitled  to  do  busi- 
ness in  such  state  or  country;  copies  of  its  contracts  of 
insurance  and  applications,  which  must  show  that  the  lia- 
bilities of  its  members  are  not  limited  to  fixed  premiums; 
and  evidence,  satisfactory  to  the  insurance  commissioner, 
that  the  corporation  has  accumulated  a  fund  equal  to 
that  required  of  like  corporations  in  this  state,  constituting 
a  reserve  or  surplus  fund,  held  in  trust  for  the  benefit  of 
its  contract-holders,  and  so  invested  and  held  as  required 
by  the  laws  of  the  state  or  government  under  which  such 
corporation  was  organized.  The  insurance  commissioner 
shall  thereupon  issue  a  license  to  such  corporation  to  do 
business  in  this  state.  This  license  must  be  renewed  an- 
nually, and  may  be  revoked  whenever  it  is  ascertained 
that  the  statements  required  to  be  made  by  this  section 
are  not  true.  Upon  such  revocation,  notice  thereof  shall 
be   given  by  the   insurance  commissioner,   by   publication 


728  APPENDIX. 

In  some  newspaper  published  in  the  city  and  county  of  San 
Francisco,  for  two  weeks,  daily,  and  no  new  contracts  shall 
be  made  by  such  company  in  this  state.  When  any  other 
state  or  country  imposes  any  additional  license,  fees, 
taxes,  or  penalties  upon  any  corporation  organized  or  do- 
ing business  under  this  act,  like  license,  fees,  taxes,  or 
penalties  shall  be  imposed  upon  corporations  of  the  same 
kind  and  their  agents  of  such  state  or  country  doing  busi- 
ness in  this  state. 

Sec.  7.  No  corporation  doing  business  under  this  act 
(except  accident  or  casualty  corporations)  shall  issue  a 
contract  of  insurance  upon  the  lile  of  any  person  under 
fifteen  years  of  age,  or  after  he  or  she  has  passed  his  or 
her  sixty-first  birthday.  Every  such  contract  of  insurance 
shall  be  founded  upon  written  application  therefor,  and 
(except  when  the  application  is  for  health,  accident,  or 
casualty  insurance  only,  or  for  one  hundred  dollars  life 
insurance  or  less)  such  application  shall  be  accompanied 
by  the  report  of  a  reputable  physician,  containing  a  de- 
tailed statement  of  his  examination  of  the  applicant,  and 
showing  the  applicant  to  be  in  good  health,  and  recom- 
mending the  issuance  of  a  contract  of  insurance.  Any 
solicitor,  agent,  employee,  examining  physician,  or  other 
person  making  a  false  or  fraudulent  statement  to  any 
corporation  doing  business  under  this  act,  with  reference 
to  any  application  for  insurance  or  for  the  purpose  of  ob- 
taining any  money  or  benefit  from  such  corporation,  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars 
nor  more  than  five  hundred  dollars,  or  by  imprisonment 
in  the  county  jail  for  not  less  than  thirty  days  nor  more 
than  one  year,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  court;  and  any  person  who  shall 
make  a  false  statement  of  any  material  fact  or  thing  in  a 
sworn  statement  as  to  the  death  or  disability  of  a  con- 
tract-holder in  any  such  corporation,  for  the  purpose  of 
procuring  or  aiding  the  beneficiary  or  beneficiaries  or 
contract-holder  in  procuring  the  payment  of  a  benefit 
named  in  the  contract,  shall  be  guilty  of  perjury,  and  may 
be  proceeded  against  and  punished  as  provided  by  the 
statute  of  this  state  in  relation  to  the  crime  of  perjury. 

Sec.  8.     The     money,     benefit,     annuities,     endowment. 


INSURANCE.  729 

cbarity,  relief,  or  aid  to  be  paid  as  provided  by  the  con- 
tracts issued  by  any  corporation  doing  business  under  this 
act  shall  not  be  liable  to  attachment  or  other  process,  and 
shall  not  be  seized,  taken,  appropriated,  or  applied  by  any 
legal  or  equitable  process,  n6r  by  operation  of  law,  to  pay 
any  debts  or  liability  of  the  contract-holder  or  any  benefi- 
ciary named  thereunder. 

Sec.  9.  Every  domestic  and  foreign  corporation  doing 
business  under  this  act  shall  annually,  on  or  before  the 
first  day  of  February,  file  with  the  insurance  commis- 
sioner, in  such  form  as  he  shall  prescribe,  a  statement 
of  its  affairs  for  the  year  ending  on  the  preceding  thirty- 
first  day  of  December.  The  insurance  commissioner,  in 
person  or  by  duly  authorized  deputy,  shall  have  the  power 
of  examination  into  the  affairs  of  any  domestic  corporation 
doing  business  or  claiming  to  do  business  under  this  act, 
at  any  time,  in  his  discretion,  and  shall  make  such  ex- 
amination at  least  once  a  year. 

Sec.  10.  If  the  insurance  commissioner,  after  examina- 
tion of  the  affairs  of  a  corporation,  shall  find  that  such 
corporation  is  not  doing  its  business  in  conformity  to  this 
act,  or  that  it  is  doing  a  fraudulent  or  unlawful  business, 
or  that  it  is  not  carrying  out  its  terms  of  contract,  or  that 
it  cannot  within  three  months  from  the  date  of  notice 
of  default  pay  its  obligations,  he  shall  cite  the  president, 
secretary,  manager,  or  general  agent  of  said  corporation, 
or  all  of  them,  to  appear  before  him  (stating  the  time  and 
place),  to  show  cause  why  the  authority  of  such  corpora- 
tion to  do  business  shall  not  be  revoked;  and  if  they  can- 
not show  cause,  then  he  shall  report  the  facts  to  the 
attorney-general  of  this  state,  who  shall  commence  pro- 
ceedings in  the  proper  court  to  restrain  said  corporation 
from  doing  any  further  business. 

Sec.  11.  No  policy  or  certificate  issued  by  any  corpora- 
tion or  association  doing  business  under  the  provisions 
of  this  act  shall  lapse  or  be  lapsed  for  the  nonpayment  of 
any  assessments,  dues,  or  premiums,  unless  the  corpora- 
tion or  assoeiation  has  first  mailed  to  the  insured  under 
such  policy  or  certificate,  at.  his  or  her  last  given  post- 
oflBce  address,  a  notice  setting  forth  the  amount  to  be  paid, 
and  the  time  the  same  is  due  and  payable;  and  such 
notice   shall   be   mailed   at   least   fifteen   days   before   the 


V30  APPENDIX. 

assessment  is  due  (provided,  tliat  such  corporations  doing 
business  under  tliis  act  as  collect  specific  amounts  at 
specific  dates,  as  contained  in  the  contract,  shall  not  be 
compelled  to  send  such  notices),  and  an  affidavit  made 
by  the  officer,  bookkeeper,  or-clerk  of  any  such  corporation 
having  charge  of  the  mailing  of  notices,  setting  forth  the 
facts  as  they  appear  on  the  records  in  the  ofiice  of  the  said 
corporation,  showing  that  such  notice  was  mailed  and  the 
date  of  mailing,  shall  constitute  conclusive  evidence  of  the 
mailing  of  such  notice. 

Sec,  12.  The  fees  for  filing  statements,  certificates,  or 
other  documents  required  by  this  act,  or  for  any  service 
or  act  of  the  insurance  commissioner,  and  the  penalties 
for  any  violation  of  this  act,  shall,  except  as  otherwise 
provided  herein,  be  the  same  as  provided  in  the  laws  of- 
this  state  relating  to  life  insurance  companies,  and  shall 
be  disposed  of  as  provided  by  such  laws. 

Sec.  13.  And  for  all  lawful  expenses  under  this  act,  or 
by  reason  of  any  of  its  provisions,  in  the  prosecution  of 
any  suit  or  proceedings,  or  otherwise,  for  the  enforcement 
of  the  provisions  of  this  act,  the  insurance  commissioner 
must  present  bills,  duly  certified  by  him,  and  accompanied 
with  vouchers,  to  the  state  board  of  examiners,  who  must 
allow  the  same,  and  direct  payment  thereof  be  made;  and 
the  state  controller  shall  draw  warrants  therefor  on  the 
sitate  treasurer  for  the  payment  of  the  same  to  the  in- 
surance commissioner,  in  addition  to  the  ordinary  con- 
tingent expense,  which  warrants  shall  be  payable  out  of 
the  general  fund. 

Sec.  14.  The  provisions  of  this  act  shall  not  apply  to 
secret  or  fraternal  societies,  lodges,  or  councils,  which 
conduct  their  business  and  secure  membership  on  the 
lodge  system  exclusively,  having  ritualistic  work  and  cere- 
monies in  their  societies,  lodges,  or  councils,  nor  to  any 
mutual  or  benefit  association,  organized  or  formed  and 
composed  only  of  members  of  any  such  society,  lodge,  or 
council  exclusively. 

Sec.  15.  All  acts  and  parts  of  acts  in  conflict  with  the 
provisions  of  this  act  are  hef-eby  repealed. 

Sec.  16.    This  act  shall  take  effect  immediately. 


INSURANCE.  731 

An  act  to  provide  for  the  incorporation  of  mutual  insur- 
ance companies,  for  the  insurance  of  life  and  health, 
and  against  accidents. 

[Approved  April  2,  1866;  1865-6,  752.    Amended  1867-8,  330, 
661;   1880,  229.] 

§    8.     Capital  stock. 

I    9.     Return  of  guarantee  notes. 

1 10.     Impaired  capital — ^Assessment. 

This   act   vi^as   incorporated   in   the   Civil   Code;    it  was 
amended  in  1880  as  follows: 
Capital  stock. 

Sec.  8.  Every  company  formed  or  existing  under  this 
act  shall  have  a  capital  stock  of  not  less  than  one  hundred 
thousand  dollars.  It  shall  not  make  any  insurance  nor 
transact  any  business  until  its  capital  stock  shall  have 
been  fully  paid  up  in  cash.  The  board  of  directors  of  the 
company,  or  a  committee  of  the  directors  appointed  by 
the  board,  shall,  without  delay,  after  organizing,  proceed 
to  obtain  the  subscriptions  required  to  complete  the  capital 
stock  of  the  company,  and  in  obtaining  such  subscription, 
or  any  subscriptions  to  capital  stock  afterward  authorized, 
must  open  books  therefor,  giving  public  notice  thereof,  if 
deemed  necessary  by  them  in  some  nevv^spaper  of  general 
circulation  in  the  county  in  which  the  principal  office  of 
the  company  is  located;  such  books  shall,  in  either  case, 
be  kept  open  until  the  amount  of  capital  stock  required 
shall  have  been  subscribed.  If  more  than  the  requisite 
amount  is  subscribed,  the  stock  shall  be  distributed  pro 
rata  among  the  subscribers.  Any  subscription  may  be 
rejected  by  the  board  of  directors,  or  the  committee 
thereof,  or  by  either,  as  to  the  whole  or  any  part  thereof, 
and  shall  be,  so  far  as  rejected,  without  effect.  [Amend- 
ment approved  April  26,  1880;  1880,  229  (Ban.  ed.  552). 
Took  effect  from  passage;  affects  only  corporations  formed 
before  1873.] 
Return  of  guarantee  notes. 

Sec.  9'.  Any  corporation  formed  or  existing  under  this 
act  may,  at  any  time,  return  to  the  makers,  their  assigns 
or  heirs,  the  guarantee  notes  held  by  said  corporation; 
and  from  and  after  such  return,  or  the  offer  thereof,  made 
in  good  faith,  the  corporation  shall  not  be  subject  to  any 


732  APPENDIX. 

of  the  obligations  or  burdens  imposed  by  section  ten  of 
said  act  upon  said  corporation  and  in  favor  of  the  makers 
of  such  notes.  [Amendment  approved  April  26,  1880;  1880, 
230  (Ban.  ed.  523).  Took  effect  from  passage;  affects  only- 
corporations  formed  before  1873.] 
Impaired  capital — Assessment. 

Sec.  10.  Whenever,  at  any  time,  the  capital  of  any  cor- 
poration formed  or  existing  under  this  act  shall  become 
impaired,  it  shall  be  the  duty  of  the  board  of  directors  at 
once  to  levy  such  an  assessment  upon  the  capital  stock, 
whether  paid  up  or  not,  as  may  be  necessary  to  make  good 
such  impairment;  and  such  assessment,  except  as  to  the 
amount  thereof,  shall  be  levied  and  collected  in  the 
manner  prescribed  by  sections  three  hundred  and  thirty- 
one  to  three  hundred  and  forty-nine,  inclusive,  of  the  Civil 
Code  of  this  state.  Every  such  corporation  may  increase 
or  diminish  its  capital  stock  in  the  mode  and  manner  pre- 
scribed by  section  three  hundred  and  fifty-nine  of  said 
Civil  Code.  [Amendment  approved  April  26,  1880;  1880, 
230  (Ban.  ed.  523).  Took  effect  from  passage;  affects  only 
corporations  formed  before  1873.] 

The  act  of  April  26,  1880,  from  which  the  foregoing  three 
amendments  were  taken,  contained  the  following  additional 
section: 
Construction  of  act.. 

Sec.  4.  Nothing  in  this  act  shall  be  construed  to  affect 
any  corporation  formed  after  twelve  o'clock  noon  on  the 
day  upon  which  the  Civil  Code  of  California  took  effect, 
nor  shall  anything  in  this  act  be  construed  to  revive  or 
put  in  force  any  part  of  the  act  of  which  it  is  amendatory, 
beyond  what  was  intended  should  be  in  force  by  the  pro- 
visions of  section  two  hundred  and  eighty-eight  of  the  Civil 
Code  of  California. 

An  act  to  provide  for  the  organization  and  management 

of  county  fire  insurance  companies. 

[Approved  April  1,  1897;  Stats.  1897,  p.  439,] 

§  1.  Incorporation   of. 

§  2.  Articles  of  incorporation — Certificate. 

§  3.  Directors. 

§  4.  OflScers. 

I  5.  Bonds. 


INSURANCE.  733 

S    6.  Powers— By-laws. 

§    7.  Membership. 

§    8.  Risks. 

§    9.  Classifying  risks. 

§  10.  Property  outside  of  county. 

§  H.  Losses. 

I  12.  Idem — Assessments. 

§  13.  Notice  of  assessments. 

§  14.  Action  for  neglect  or  refusal  to  pay  assessment. 

§  15.  Annual  statement. 

§  16.  Withdrawal. 

I  17.  Report  of  officers. 

§  18.  Dissolution. 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  Any  number  of  persons  not  less  than  twenty- 
five,  residing  in  any  county  in  this  state,  owning  insurable 
property  aggregating  not  less  than  fifty  thousand  dollars 
in  value,  which  they  desire  to  have  insured,  may  incor- 
porate for  the  purpose  of  mutual  insurance  against  loss 
or  damage  by  fire. 

Sec.  2.  Such  persons  shall  file  with  the  insurance  com- 
missioner" a  declaration  of  their  intention  to  incorporate 
for  the  purposes  expressed  in  section  one  of  this  act,  which 
declaration  shall  be  signed  by  all  of  the  incorporators, 
and  shall  contain  a  copy  of  the  articles  of  incorporation 
proposed  to  be  adopted.  The  insurance  commissioner 
shall  examine  the  proposed  articles  of  incorporation,  and, 
if  they  conform  to  this  act,  he  shall  deliver  to  such  persons 
a  certificate  permitting  them  to  incorporate  as  such  in- 
surance company.  Such  certificate  shall  be  directed  to  the 
clerk  of  the  county  in  which  such  corporation  is  proposed 
to  be  organized,  and  shall  contain  a  copy  of  the  proposed 
articles  of  incorporation.  Upon  filing  with  the  secretary 
of  state,  the  certified  copies  of  the  duly  executed  articles 
of  incorporation,  as  required  by  section  two  hundred  and 
ninety  of  the  Civil  Code  of  the  state  of  California,  and  of 
the  certificate  above  provided  for,  the  secretary  of  state 
shall  thereupon  issue  a  certificate  of  incorporation  to  such 
county  insurance  company,  and,  upon  organizing  under 
such  articles  of  incorporation,  such  county  fire  insurance 
company  may  carry  on  a  fire  insurance  business  as  herein- 
after provided.  The  articles  of  incorporation  and  the 
charter  or  certificate  obtained  by  any  county  fire  insurance 
company  operating  under  the  provisions  of  this  act,  shall 
be  subject  to  the  control  and  modification  by  the  legisla- 


'  734  APPENDIX. 

ture  of  the  state  of  Califoi-nia.  The  by-laws  and  all  amend- 
ments thereto  shall  be  filed  with  the  insurance  commis- 
sioner within  sixty  (CO)   days  after  their  adoption. 

Sec.  3.  The  number  of  directors  shall  not  be  less  than 
(7)  seven,  nor  more  than  eleven  (11),  a  majority  of  whom 
shall  constitute  a  quorum  to  do  business.  These  directors 
shall  be  elected  from  the  members  of  the  association  by 
ballot,  and  shall  hold  ofiice  for  one  year,  or  until  their 
successors  are  elected  and  qualified.  The  annual  meeting 
of  the  members  of  the  company  shall  be  on  the  second' 
Monday  in  January  of  each  year.  In  the  election  of  the 
first  board  of  directors  each  member  shall  be  entitled  to 
one  vote.  At  every  subsequent  election,  every  person 
insured  shall  be  entitled  to  as  many  votes  as  there  are 
directors  to  be  elected,  and  an  equal  additional  number 
for  every  risk  or  risks  he  holds  in  the  company,  and  he 
may  cast  the  same  in  person  or  by  proxy,  distributing 
them  among  the  directors  to  be  elected,  or  among  a  less 
number  of  directors,  or  cumulating  them  upon  one  candi- 
date, as  he  shall  see  fit. 

Sec.  4.  The  directors  shall  elect,  from  their  own  num- 
ber, a  president  and  a  vice-president,  and  shall  also  elect 
a  treasurer  and  a  secretary,  who  may  or  may  not  be 
members  of  the  company.  All  of  such  ofiicers  hold  their 
office  for  one  year  from  the  date  of  their  election,  and 
until  their  successors  are  elected  and  qualified. 

Sec.  5.  The  treasurer  and  secretary  shall  give  bonds 
to  the  company  for  the  faithful  performance  of  their  duties, 
in  such  amounts  as  shall  be  prescribed  by  the  board  of 
directors. 

Sec.  6.  Such  corporation  and  its  directors  shall  possess 
the  usual  powers,  and  be  subject  to  the  usual  duties  of 
corporations  and  directors  thereof,  and  may  make  such 
by-laws,  not  inconsistent  with  the  constitution  and  the  laws 
of  this  state,  as  may  be  deemed  necessary  for  the  manage- 
ment of  its  affairs,  in  accordance  with  the  provisions  of 
this  act.  Also  to  prescribe  the  duties  of  its  officers  and  to 
fix  their  compensation,  and  to  alter  and  amend  its  by-laws, 
when  necessary. 

Sec.  7.  Any  person  owning  property  in  the  county  for 
which  any  such  company  is  formed  may  become  a  member 


INSURANCE.  735 

Of  such  company  by  insuring  therein,  and  shall  be  entitled 
to  all  the  rights  and  privileges  appertaining  thereto,  and 
no  person  not  residing  in  the  county  in  which  the  company 
is  formed  shall  become  a  director  of  such  company. 

Sec.  8.  Such  company  may  issue  policies  only  on  de- 
tached dwellings,  schoolhouses,  churches,  barns  (except 
livery  barn  and  hotel  barns),  and  other  farm  buildings,  and 
such  property  as  may  be  contained  therein;  also,  other 
property  on  the  premises  owned  by  the  insured;  hay  and 
grain  in  stack  or  in  the  field,  and  livestock  on  the  premises 
of  the  insured,  anywhere  in  the  county,  for  any  time  not 
exceeding  five  years,  and  not  to  extend  beyond  the  time 
limited  for  the  existence  of  the  charter,  'and  for  an  amount 
not  to  exceed  four  thousand  five  hundred  dollars  on  any 
one  risk;  provided,  that  no  company  which  has  been  or- 
ganized more  than  six  months  shall  write  insurance  subject 
to  one  fire  exceeding  three  per  cent  of  the  amount  at  risk 
upon  the  books  of  such  company.  All  persons  so  insured 
shall  give  their  obligation  to  the  company,  binding  them- 
selves, their  heirs  and  assigns,  to  pay  their  pro  rata  share 
to  the  company  of  the  necessary  expense  and  of  loss  by  fire 
which  may  be  sustained  by  any  member  thereof  during 
the  time  for  which  their  respective  policies  are  written, 
and  they  shall  also  at  the  time  of  effecting  the  insurance 
pay  such  a  percentage  in  cash,  and  such  other  charges,  as 
may  be  required  by  the  rules  or  by-laws  of  the  company. 

Sec.  9.  All  such  companies  must  classify  the  property 
insured  therein  at  the  time  of  issuing  policies  thereon 
under  different  rates,  corresponding  as  nearly  as  may  be 
to  the  greater  or  less  risk  from  fire  loss  which  may  be 
attached  to  the  several  kinds  of  property  insured. 

Sec.  10.  No  such  company  shall  insure  any  property 
beyond  the  limits  of  the  county  within  which  the  com- 
pany is  organized,  nor  shall  any  company  issue  policies  of 
insurance  on  any  property  within  the  limits  of  any  city 
containing  over  six  thousand  inhabitants  at  the  time  of 
the  organization  of  such  company;  provided,  that  no  dwell- 
ing shall  be  insured  within  the  corporate  limits  of  any 
city  or  town  exposed  by  any  other  building  within  one 
hundred  feet,  or  by  any  other  risk  other  than  a  dwelling  or 
private  barn,  within  two  hundred  feet  of  the  risk  assumed; 
provided,  that  the  amount  of  insurance  shall  not  exceed 


736  APPENDIX. 

seventy-five  per  cent  of  the  value  of  the  property  and  that 
no  additional  insurance  shall  be  allowed. 

Sec.  11.  Every  member  of  such  company  who  may  sus- 
tain loss  or  damage  by  fire  shall  immediately  notify  the 
president,  or  in  his  absence,  the  secretary  thereof,  stating 
the  amount  of  damages  or  loss  sustained  or  claimed,  and  if 
not  more  than  two  hundred  dollars,  then  the  president  and 
secretary  shall  proceed  to  ascertain  the  amount  of  such 
loss  or  damage,  and  adjust  the  same.  If  the  claim  for 
damage  or  loss  be  an  amount  greater  than  two  hundred 
dollars,  then  the  president  of  such  company,  or  in  his 
absence,  the  vice-president,  or  in  the  absence  of  both,  the 
secretary  thereof,  'shall  forthwith  convene  the  board  of 
directors  of  such  company,  whose  duty  it  shall  be  when 
convened  to  appoint  a  committee,  of  not  less  than  three 
disinterested  members  of  such  company,  to  ascertain  the 
amount  of  such  damage  or  loss.  If  in  either  case  there  is 
a  failure  of  the  parties  to  agree  upon  the  amount  of  such 
damage  or  loss,  they  shall  submit  the  question  of  the 
amount  of  such  loss  to  arbitration.  The  president  of  the 
company  shall  appoint  one  disinterested  person  to  act  as 
an  arbitrator,  and  the  claimant  or  insured  shall  appoint 
another,  and  if  such  two  arbitrators  fail  to  agree  upon  the 
amount  of  such  loss,  then  they  shall  select  a  third  disin- 
terested person  to  act  with  them.  Such  arbitrators  so 
appointed  shall  have  full  authority  to  examine  witnesses, 
and  to  do  all  other  things  necessary  to  the  proper  deter- 
mination of  the  amount  of  loss  sustained  by  the  claimant, 
and  shall  make  their  award  in  writing  to  the  president  of 
such  company,  and  such  award  so  as  aforesaid  made  shall 
be  final  as  to  the  amount  of  the  loss  sustained. 

The  pay  of  the  said  committee  shall  be  three  ($3.00) 
dollars  per  day  for  each  day's  services  so  rendered,  and  five 
cents  for  each  mile  necessarily  traveled  in  the  discharge 
of  their  duties,  which  shall  be  paid  by  the  claimant,  unless 
the  award  of  such  committee  shall  exceed  the  sum  offered 
by  the  company  in  liquidation  of  such  loss  or  damage, 
in  which  case  such  expense  shall  be  paid  by  the  company. 

Sec.  12.  When  the  amount  of  any  loss  shall  have  been 
ascertained,  which  exceeds  in  amount  the  cash  funds  of 
the  company,  the  president  shall  convene  the  directors  of 
said   company,   who   shall   make   an   assessment   upon   all 


INSURANCE.  737 

the  property  to  the  amount  for  which  each  several  piece 
of  property  is  insured,  taken  in  connection  with  the  rate 
of  premium  under  which  it  may  be  classified. 

Sec.  13.  It  shall  be  the  duty  of  the  secretary,  whenever 
such  an  assessment  shall  have  been  made,  to  immediately 
notify  every  person  holding  a  risk  in  such  company,  per- 
sonally, by  an  agent,  or  by  letter  directed  to  his  usual  post- 
office  address,  of  the  amount  of  such  loss,  and  the  sum 
due  from  him,  as  his  share  thereof,  and  of  the  time  and  to 
whom  such  payment  is  to  be  made;  but  such  time  shall 
not  be  less  than  thirty  days,  nor  more  than  ninety  days, 
from  the  date  of  such  notice. 

Sec.  14.  An  action  may  be  brought  against  any  member 
of  such  company  who  shall  neglect  or  refuse  to  pay  any 
assessment  made  upon  him  by  the  provisions  of  this  act, 
or  other  liabilities  due  the  company,  and  the  directors  of 
any  company  so  formed  who  shall  willfully  refuse  or 
neglect  to  perform  the  duties  imposed  upon  them  by  law 
or  by  the  by-laws  of  the  company,  shall  be  liable  in  their 
individual  capacity  to  the  person  sustaining  such  loss.  An 
action  may  also  be  brought  and  maintained  against  any 
such  company  by  members  thereof  for  losses  sustained  if 
payment  is  withheld  after  the  amount  of  such  losses  have 
been  determined,  and  is  due  by  the  terms  of  the  policy. 

Sec.  15.  It  shall  be  the  duty  of  the  secretary  to  prepare 
an  annual  statement  showing  the  condition  of  such  com- 
pany on  the  thirty-first  day  of  December,  and  present  the 
same  at  the  annual  meeting. 

Sec.  16.  Any  member  of  such  company  may  withdraw 
therefrom  by  surrendering  his  policy  for  cancellation  at 
any  time  while  the  organization  continues  the  business  for 
which  it  was  organized,  by  giving  notice  in  writing  to  the 
secretary  thereof,  and  paying  his  share  of  all  claims  that 
may  exist  against  such  company;  provided,  that  the  com- 
pany shall  have  power  to  cancel  or  terminate  any  policy 
by  giving  the  insured  five  days'  written  notice  to  that 
effect,  and  returning  to  him  any  excess  of  premium  he  may 
have  paid  during  the  term  of  the  policy,  over  the  cost  of 
his  insurance,  as  measured  by  the  rates  of  standard  fire 
insurance  companies  doing  business  in  this  state. 

Sec.  17.  It  shall  be  the  duty  of  the  president  and  sec- 
retary, within  thirty  days  after  the  first  day  of  January  in 


738  APPENDIX. 

each  year,  to  prepare,  under  their  own  oath,  and  transmit 
to  the  Insurance  commissioner,  a  statement  of  the  con- 
dition of  the  company  on  the  last  day  of  the  month  next 
preceding  the  annual  meeting.  If,  upon  examination,  the 
insurance  commissioner  finds  that  such  company  is  doing 
business  correctly,  in  accordance  with  the  provisions  of 
this  act,  he  shall  thereupon  furnish  the  company  his  cer- 
tificate, which  shall  be  deemed  authority  to  continue  busi- 
ness during  the  ensuing  year,  subject,  however,  to  the 
provisions  of  this  act.  For  such  examination  and  certifi- 
cate the  company  shall  pay  one  dollar.  Each  company 
shall  pay,  at  the  time  of  organization,  five  dollars  to  the 
insurance  commissioner,  for  all  services  which  he  shall 
render  in  the  matter  of  organization. 

Sec.  18.  Any  such  company  may  be  proceeded  against 
and  dissolved  in  the  manner  and  upon  the  same  conditions 
as  provided  in  case  of  other  insurance  companies  incor- 
porated in  this  state. 

Sec.  19.  All  acts  and  parts  of  acts  in  conflict  with  this 
act  are  hereby  repealed. 


IRRIGATION. 
Laws  relating  to:    See  General  Laws,  title  Irrigation. 


LIENS. 


Servant's  lien,  where  wages  not  paid:  See  ante,  title 
Corporations. 

An  act  creating  a  lien  in  favor  of  owners  or  those  in  charge 
of  stallions,  jacks,  and  bulls  used  for  propagating  pur- 
poses, and  providing  for  the  operation  of  such  lien. 
[Approved  March  11,  1891;  Stats.  1891,  p.  90.] 

§  1.  Claim  to  be  filed — False  representations. 

§  2.  Suits  to  foreclose. 

§  3.  Attachment. 

§  4.  Duty  of  sheriff. 

§  5.  Sections  of  Code  of  Civil  Procedure. 

Section  1.  Any  owner  or  person  having  in  charge  a 
stallion,  jack,  or  bull  used  for  propagating  purposes,  shall 
have  a  lien  for  the  agreed  price  for  the  service  of  such 


IRRIGATION.  739 

stallion,  jack,  or  bull  upon  any  mare  or  cow  served  for  pay 
by  any  such  stallion,  jack,  or  bull,  and  upon  the  offspring  of 
such  service;  provided,  that  the  owner  or  person  having  in 
charge  such  stallion,  jack,  or  bull  shall,  within  ninety  days 
after  such  service,  file  in  the  office  of  the  county  recorder 
of  the  county  where  such  mare  or  cow  is  served  or  kept, 
a  verified  claim  containing  a  particular  description  of  the 
mare  or  cow  so  served,  the  date  and  place  of  serving,  the 
name  of  the  owner  or  reputed  owner  of  the  mare  or  cow 
so  served,  a  proper  description,  by  name  or  otherwise,  of 
the  stallion  or  jack  or  bull  performing  such  service,  the 
name  of  the  owner  or  person  in  charge  thereof,  and  the 
amount  of  the  lien  claimed,  which  claim,  when  filed  as 
aforesaid,  shall  operate  as  notice  to  subsequent  purchasers 
and  incumbrancers  of  such  mare  or  cow  for  the  term  of 
one  year  from  the  date  of  the  filing  of  such  claim;  and, 
provided,  that  any  willfully  false  representations  concern- 
ing the  breeding  or  pedigree  of  such  stallion,  jack,  or  bull 
made  or  published  by  the  owner  or  person  in  charge  of 
such  stallion,  jack,  or  bull,  or  by  any  one  else  at  the  request! 
or  instigation  of  such  owner  or  person  in  charge,  shall 
invalidate  any  lien  claimed  under  or  by  virtue  of  the  pro- 
visions of  this  act. 

Sec.  2.  Suit  to  foreclose  any  lien  created  hereunder  ■ 
may  be  brought  in  any  county  where  said  mare,  cow,  or 
offspring  from  such  service  may  be  found,  and  the  plaintiff, 
at  the  time  of  issuing  summons,  or  at  any  time  afterwards 
prior  to  the  rendition  of  judgment  therein,  may  have  the 
mare  or  cow  upon  which  said  lien  subsists,  and  the  said 
offspring,  attached  as  further  security  for  the  payment 
of  any  judgment  he  may  recover,  unless  the  defendant  or 
person  in  possession  of  such  mare,  cow,  or  offspring  give 
him  good  and  sufficient  security  to  pay  such  judgment,  in 
which  event  the  mare,  cow,  or  offspring  shall  be  forthwith 
discharged  by  the  sheriff  from  such  attachment,  and  from 
the  lien  hereunder  created. 

Sec.  3.  The  clerk  of  the  court  must  issue  the  writ  of 
attachment  upon  receiving  an  affidavit  by  or  on  benalf  of 
the  plaintiff,  showing, — 

First. — That  the  defendant  is  indebted-  to  the  plaintiff 
upon  a  demand  for  services  rendered  by  the  stallion,  jack, 
or  bull,  belonging  to  or  under  charge  of  plaintiff,  upon  the 


740  APPENDIX. 

mare  or  cow  of  defendant,  for  which  his  claim  has  been 
duly  filed,  in  accordance  with  section  one  of  this  act. 

Second. — That  the  sum  for  which  the  attachment  is 
asked  is  an  actual,  bona  fide  existing  debt,  due  and  owing 
from  the  defendant  to  the  plaintiff,  and  that  the  attach- 
ment is  not  sought  and  the  action  is  not  prosecuted  to 
hinder,  delay,  or  defraud  any  creditor  or  creditors  of  the 
defendant. 

Sec.  4.  The  writ  must  be  directed  to  the  sheriff  of  the 
county  in  which  suit  is  brought,  and  must  require  him 
to  attach  the  mare  or  cow  specified  in  such  lien,  and  the 
offspring  of  such  service,  unless  the  defendant  or  person 
in  possession  of  such  mare,  cow,  or  offspring  give  good  and 
sufiicient  security  as  provided  in  this  act,  in  which  case,  to 
take  such  security  and  discharge  any  attachment  he  may 
have  made,  and  to  deliver  up  such  mare,  cow,  or  olfspring 
to  defendant  or  to  the  person  from  whom  he  has  taken 
the  same,  who  shall  receive  the  same  free  from  the  lien 
upon  which  such  suit  is  brought. 

Sec.  5.  Sections  five  hundred  and  thirty-nine,  eleven 
hundred  and  eighty-nine,  eleven  hundred  and  ninety-eight, 
and  eleven  hundred  and  ninety-nine  of  the  Code  of  Civil 
Procedure  are  hereby  made  applicable  to  this  act. 

Sec.  6.  This  act  shall  take  effect  from  and  after  its 
passage. 

An  act  giving  a  lien  to  loggers  and  laborers,  employed  in 
logging  camps,  upon  the  logs  cut  and  hauled  by  the 
persons  who  employ  them. 

LApproved  March  30,  1878;  1877-8,  747.  Amended  1880,  38; 
1887,    53.] 

§  1.  Labor  with  logs,  lien  upon. 

§  2.  Lien  to  cease,  how  and  when. 

§  3.  Suits  to  be  commenced  in  proper  courts. 

§  4.  Plaintiff  to  have  lumber  attached. 

§  5.  Clerk  to  issue  writ. 

§   6.  Sheriff  to  attach  logs. 

§  7.  Sections  made  applicable. 

§   8.  Attachment,  how  made. 

§  9.  Where  lien  shall  extend. 

Labor  with  logs,,  lien  upon. 

Section  1.  A  person  who  labors  at  cutting,  hauling,  raft- 
ing, or  driving  logs  or  lumber,  or  who  performs  any  labor 


LIENS.  741 

in  or  about  a  logging  camp  necessary  for  the  getting  out 
or  transportation  of  logs  or  lumber,  shall  have  a  lien 
thereon  for  the  amount  due  for  his  personal  services,  which 
shall  take  precedence  of  all  other  claims  to  continue  for 
thirty  days  after  the  logs  or  lumber  arrive  at  the  place  of 
destination,  for  sale  or  manufacture,  except  as  hereinafter 
provided.  [Amendment  approved  April  12,  1880;  1880,  38 
(Ban.  ed.  191).     Took  effect  from  passage.] 

Lien  to  cease,  how  and  when. 

Sec.  2.  The  lien  hereby  created  shall  cease  and  deter- 
mine unless  the  claimant  thereof  shall,  within  twenty  days 
from  the  time  such  labor  shall  have  been  completed,  file 
and  record  in  the  office  of  the  county  recorder  of  the  county 
where  such  labor  was  performed  a  verified  claim,  contain- 
ing a  statement: 

1.  Of  his  demand,  after  deducting  all  just  credits  and 
offsets; 

2.  The  time  within  which  such  labor  was  done; 

3.  The  name  of  the  person  or  persons  for  which  the  same 
was  done; 

4.  The  place  where  the  logs  or  timber  upon  which  such 
lien  is  claimed  are  believed  to  be  situated,  and  tne  marks 
upon  the  same; 

5.  The  reputed  owner  thereof;  and, 

6.  The  reputed  owner  of  the  land  from  which  the* same 
were  cut  and  hauled. 

Suits  to  be  commenced  in  proper  courts. 

Sec.  3.  All  liens  hereby  provided  for  shall  cease  and 
determine  unless  suit  to  foreclose  the  same  shall  be  com- 
menced in  the  proper  court  within  twenty-five  days  from 
the  time  the  same  are  filed.  [Amendment  approved  April 
12,  1880;  Amendments  1880,  39  (Ban.  ed.  191).  Took  effect 
from  passage.] 

Plaintiff  to  have  lumber  attached. 

Sec.  4.  The  plaintiff  in  any  such  suit,  at  the  time  of  issu- 
ing the  summons,  or  at  any  time  afterward,  may  have  the 
logs  or  timber  upon  which  such  lien  subsists  attached,  as 
further  security  for  the  payment  of  any  judgment  he  may 
recover,  unless  defendant  give  him  good  and  sufficient 
security  to  pay  such  judgment,  in  which  event  such  logs 


742  APPENDIX. 

shall   be   forthwith   dischaltged   by   the   sheriff   from   such 
attachment,  and  from  the  lien  hereby  created. 
Clerk  to  issue  writ. 

Sec.  5.  The  clerk  of  the  court  must  issue  the  writ  of 
attachment  upon  receiving  an  affidavit  by  or  on  behalf 
of  the  plaintiff,  showing: 

1.  That  defendant  is  indebted  to  the  plaintiff  upon  a 
demand  for  labor,  for  which  his  claim  has  been  duly  filed 
in  accordance  with  section  two  of  this  act; 

2.  That  the  sum  for  which  the  attachment  is  asked  is 
an  actual  bona  fide  existing  debt,  due  and  owing  from  the 
defendant  to  the  plaintiff,  and  that  the  attachment  is  not 
sought,  and  the  action  jj  not  prosecuted,  to  hinder,  delay, 
or  defraud  any  creditor  or  creditors  of  the  defendant. 
Sheriff  to  attach  logs. 

Sec.  6.  The  writ  must  be  directed  to  the  sheriff  of  the 
county,  and  must  require  him  to  attach  and  safely  keep 
the  logs  and  timber  specified  in  such  lien,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  plaintiff's  demand, 
unless  the  defendant  give  good  and  sufficient  security, 
as  provided  in  this  act,  in  which  case,  to  take  such  security 
and  discharge  any  attachment  he  may  have  made,  and  to 
deliver  up  such  logs  to  the  defendant,  who  shall  receive 
the  same  free  from  the  lien  upon  which  such  suit  is 
brought. 
Sections   made  applicable. 

Sec.  7.  Sections  five  hundred  and  thirty-nine,  eleven 
hundred  and  eighty-nine,  eleven  hundred  and  ninety-five, 
eleven  hundred  and  ninety-seven,  eleven  hundred  and 
ninety-eight,  and  eleven  hundred  and  ninety-nine  of  the 
Code  of  Civil  Procedure  are  hereby  made  applicable  to 
this  act.  [Amendment  approved  March  8,  1887;  Stats. 
1887,  p.  53.] 
Attachment,   how   made. 

Sec.  8.  Such  attachment  shall  be  made  by  taking  such 
logs  into  possession,  and  the  sheriff  shall  make  an  in- 
ventory and  return  of  his  proceedings  as  directed  in  chap- 
ter IV,  title  VII,  of  the  Code  of  Civil  Procedure. 

Where  lien  shall  extend. 

Sec.  9.     The  lien  provided  for  by  this  act  shall  in  no 


IRRIGATION— LODGING-HOUSES.  743 

case  extend  beyond  the  limits  of  the  county  in  which  the 
logs  or  timber  in  controversy  were  cut. 

Sec.  10.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

An  act  to  secure  the  wages  of  persons   employed  as  la- 
borers on  threshing-machines. 
[Approved  March  12,  1885;    1885,  109.] 

Section  1.  Every  person  performing  work  or  labor  of 
any  kind  in,  with,  about,  or  upon  any  threshing-machine, 
the  engine,  horse-power,  wagons,  or  appurtenances  thereof, 
while  engaged  in  threshing,  shall  have  a  lien  upon  the 
same  to  the  extent  of  the  value  of  his  services. 

Sec.  2.  The  lien  herein  given  shall  extend  for  ten 
days  after  the  person  has  ceased  such  work  or  labor. 

Sec.  3.  If  judgment  shall  be  recovered  in  any  action 
to  recover  for  said  services  for  work  or  labor  performed, 
and  said  property  shall  be  sold,  the  proceeds  of  such  sale 
shall  be  distributed  pro  rata  to  all  judgment  creditors 
who  have,  within  ten  days,  begun  suits  to  recover  judg- 
ments for  the  amount  due  them  for  such  work. 

Sec.  4,  The  lien  shall  expire  unless  a  suit  to  recover 
the  amount  of  the  claim  is  brought  within  ten  days  after 
the  party  ceases  work. 


LODGING-HOUSES. 

An  act  concerning  lodging-houses  and  sleeping  apartments 

within   the   limits   of  incorporated   cities. 

[Approved  April  3,  1876;  1875-6,  759.1 

§  1.     Number  of  cubic  feet. 

§  2.     Misdemeanor. 

§  3.     Buildings  excepted. 

Number  of  cubic  feet  for  each  person. 

Section  1.  Every  person  who  owns,  leases,  lets,  or 
hires,  to  any  person,  or  persons,  any  room  or  apartment 
in  any  building,  house,  or  other  structure  within  the 
limits  of  any  incorporated  city,  or  city  and  county,  within 
the  state  of  California,  for  the  purpose  of  a  lodging  or 
sleeping  apartment,  which  room  or  apartment  contains  less 


744  APPENDIX. 

than  five  hundred  cubic  feet  of  space,  in  the  clear,  for 
each  person  so  occupying  such  room  or  apartment,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction thereof,  be  punished  by  a  fine  of  not  less  than  fifty 
(50)  dollars  or  more  than  five  hundred  (500)  dollars, 
or  by  imprisonment  in  the  county  jail,  or  by  both  such 
fine  or  Imprisonment. 

Misdemeanor. 

Sec.  2.  Any  person  or  persons  found  sleeping  or  lodg- 
ing, or  who  hires  or  uses  for  the  purpose  of  sleeping  in  or 
lodging  in  any  room  or  apartment  which  contains  less  than 
five  hundred  (500)  cubic  feet  of  space,  in  the  clear,  for 
each  person  so  occiipying  such  room  or  apartment,  shall 
be  deemed  guilty  of  a  misdemeanor,  and  shall,  upon  con- 
viction, be  punished  by  a  fine  of  not  less  than  ten  (10) 
or  more  than  fifty  (50)  dollars,  or  by  both  such  fine  and 
imprisonment. 

Buildings  excepted. 

Sec.  3.  It  shall  be  the  duty  of  the  chief  of  police  (or 
such  other  person  to  whom  the  police  powers  of  a  city 
are  delegated)  to  detail  a  competent  and  qualified  oflacer 
or  ofiicers  of  the  regular  force  to  examine  into  any  viola- 
tion of  any  of  the  provisions  of  this  act,  and  to  arrest  any 
person  guilty  of  any  such  violation. 

Sec.  4.  The  provisions  of  this  act  shall  not  be  con- 
strued to  apply  to  hospitals,  jails,  pi'isons,  Insane  asylums, 
or  other  public  institutions. 

Sec.  5.  All  acts  or  parts  of  acts  In  conflict  with  the 
provisions  of  this  act  are  hereby  repealed. 

Sec.  6.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 


MASTER    AND    SERVANT. 

An  act  to  provide  for  a  lunch  hour  for  laborers  In  saw- 
mills, shake-mills,  shingle-mills,  and  logging-camps. 

[Approved  February  28,  1901,  p.  75.] 

Lunch  hour  for  laborers  in  lumber  camps  and  mills. 

Section  1.     Every    person,    corporation,    co-partnership, 
or  company  operating  a  sawmill,  shake-mill,  shingle-mill,  or 


MASTER  AND   SERVANT— MINES  AND   MINING.  745 

logging-camp,  in  the  state  of  California,  shall  allow  to  his 
or  its  employees,  workmen,  and  laborers  a  period  of  not 
less  than  one  hour  at  noon  for  the  midday  meal. 

Sec.  2.  Any  person,  corporation,  co-partnership,  or  com- 
pany, his  or  its  agents,  servants,  or  managers,  violating 
any  of  the  provisions  of  this  act  shall  be  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall  be  punished 
by  a  fine  of  not  more  than  two  hundred  dollars  nor  less 
than  one  hundred  dollars  for .  each  violation  of  the  pro- 
visions of  this  act. 

Sec.  3.  This  act  shall  take  effect  and  be  in  force  on  the 
first  day  of  April,  nineteen  hundred  and  one. 


MECHANICS'   INSTITUTES:      See   ante,   title   Chambers 
of  Commerce. 


MINES    AND    MINING. 

An  act  for  the  protection  of  miners. 

[Approved  March  16,  1872;    Stats.  1871-72,  p.  413.] 

§  1.     Protection  of  miners. 

§  2.      Escape  shaft. 

§  3.     Liabilities.    Damages. 

Section  1.  It  shall  not  be  lawful  for  any  corporation, 
association,  owner,  or  owners  of  any  quartz-mining  claims 
within  the  state  of  California,  where  such  corporation,  as- 
sociation, owner,  or  owners  employ  twelve  men  daily,  to 
sink  down  into  such  mine  or  mines  any  perpendicular 
shaft  or  incline  beyond  a  depth  from  the  surface  of  three 
hundred  feet  without  providing  a  second  mode  of  egress 
from  such  mine,  by  shaft  or  tunnel,  to  connect  with  the 
main  shaft  at  a  depth  of  not  less  than  one  hundred  feet 
from  the  surface. 

Sec.  2.  It  shall  be  the  duty  of  each  corpoi'ation,  asso- 
ciation, owner,  or  owners  of  any  quartz  mine  or  mines 
in  this  state,  where  it  becomes  necessary  to  work  such 
mines  beyond  the  depth  of  three  hundred  feet,  and  where 
the  number  of  men  employed  therein  daily  shall  be  twelve 
or  more,  to  proceed  to  sink  another  shaft  or  construct  a 
tunnel  so  as  to  connect  with  the  main  working  shaft  of 
Civ.   Code— 32 


746  APPENDIX. 

such  mine  as  a  mode  of  escape  from  underground  acci- 
dent or  otherwise.  And  all  corporations,  associations, 
owner,  or  owners  of  mines  as  aforesaid,  working  at  a 
greater  depth  than  three  hundred  feet,  not  having  any 
other  mode  of  egress  than  from  the  main  shaft,  shall  pro- 
ceed as  herein  provided. 

Sec.  3.  When  any  corporation,  association,  owner,  or 
owners  of  any  quartz  mine  in  this  state,  shall  fail  to  pro- 
vide for  the  proper  egress  as  herein  contemplated, 
and  where  any  accident  shall  occur,  or  any  miner  work- 
ing therein  shall  be  hurt  or  injured  and  from  such  injury 
might  have  escaped  if  the  second  mode  of  egress  had 
existed,  such  corporation,  association,  owner,  or  owners 
of  the  mine  where  tne  injuries  shall  have  occurred  shall 
be  liable  to  the  person  injured  in  all  damages  that  may 
accrue  by  reason  thereof;  and  an  action  at  law  in  a  court 
of  competent  jurisdiction  may  be  maintained  against  the 
owner  or  owners  of  such  mine,  which  owners  shall  be 
jointly  or  severally  liable  for  such  damages.  And  where 
death  shaV  ensue  from  injuries  received  from  any 
negligence  on  the  part  of  the  owners  thereof  by  reason 
of  their  failure  to  comply  with  any  of  the  provisions  of 
this  act,  the  heirs  or  relatives  surviving  the  deceased 
may  commence  an  action  for  the  recovery  of  such  dam- 
ages as  provided  by  an  act  entitled  an  act  requiring  com- 
pensation for  causing  death  by  wrongful  act,  neglect,  or 
default,  approved  April  twenty-sixth,  eighteen  hundred  and 
sixty-two. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  six 
months  from  and  after  its  passage. 

An  act  supplemental  to  an  act  entitled  "An  act  concern- 
ing corporations,"  passed  the  twenty-second  of  April, 
one  thousand  eight  hundred  and  fifty. 
[Approved  March  21,  1872;   1871-2,  443.     Amended  1875-6, 

730.] 
See  note  under  sec.  7. 

§  1.  Petition  for  removal  of  officers, 

i   2.  Organization  of  meeting. 

§  3.  Ballot  to  supply  vacancies. 

I   4.  Certificate  of  election. 

§  5.  Fees  of  county  clerk. 


MINES    AND    MINING.  747 

Petition  for  removal   of  oflacers. 

Section  1.  On  petition  of  the  majority  of  the  share- 
holders of  any  corporation  formed  for  the  purpose  of 
mining  to  the  county  judge  of  the  county  where  said 
corporation  has  its  principal  place  of  business,  verified  by 
the  signers,  to  the  effect  that  they  are  severally  the  holders 
on  the  books  of  the  company  of  the  rrumber  of  shares  set 
opposite  their  signatures  to  the  foregoing  petition,  the 
county  judge  shall  issue  his  notice  to  the  shareholders 
of  said  company  that  a  meeting  of  the  shareholders  will 
be  held,  stating  the  time,  not  less  than  five  or  more  than 
ten  days  after  the  first  publication  of  such  notice,  and 
the  place  of  meeting  within  said  county,  and  the  object  to 
be  to  take  into  consideration  the  removal  of  ofiicers  of 
said  company;  which  notice,  signed  by  the  said  county 
judge,  shall  be  published  daily  in  one  or  more  daily  news- 
papers published  in  said  county  for  at  least  five  days  before 
the  time  for  the  meeting. 

Organization  of  meeting. 

Sec.  2.  At  the  time  and  place  appointed  by  said  notice, 
those  claiming  to  be  shareholders  who  shall  assemble 
shall  proceed  to  organize  by  the  appointment  of  a  chair- 
man and  secretary,  and  thereupon  those  claiming  to  be 
shareholders  shall  present  proof  thereof,  and  only  those 
showing  a  right  to  vote  shall  take  part  in  the  further 
proceedings.  *  If  it  appears  that  at  the  time  appointed, 
or  within  one  hour  thereafter,  shareholders  of  less  than 
one-half  the  shares  are  present,  no  further  proceedings 
shall  be  had;  but  the  meeting  shall  be  ipso  facto  dissolved; 
provided,  however,  that  by  a  vote  of  the  holders  of  the  ma- 
jority of  the  capital  stock  of  the  corporations  aforesaid  the 
board  of  trustees  may  be  required  to  furnish  to  the  meet- 
ing a  written  detailed  statement  and  account  of  the  af- 
fairs, business,  and  property  of  the  corporation;  but  if  the 
holders  of  a  majority  of  the  shares  are  present,  they  shall 
proceed  to  vote,  the  secretary  calling  the  roll,  and  the 
members  voting  yea  or  no,  as  the  case  may  be.  The  sec- 
retary shall  enter  the  same  upon  his  list,  and  when  he  has 
added  up  the  list  and  stated  the  result,  he  shall  sign  the 
same  and  hand  it  to  the  chairman,  who  shall  sign  the 
same    and    declare    the    result.      [Amendment    approvedl 


748  APPENDIX. 

April  1,  1876;  Amendments  1875-6,  730.     Took  effect  from 
passage.] 

Ballot  to  supply  vacancies. 

Sec.  3.  If  the  result  of  the  vote  is  that  the  holders  of 
a  majority  of  all  the  shares  of  the  company  are  in  favor 
of  the  removal  of  one  or  more  of  the  officers  of  the  com- 
pany, the  meeting  shall  then  proceed  to  ballot  for  officers 
to  supply  the  vacancies  thus  created.  Tellers  shall  be 
appointed  by  the  chairman,  who  shall  collect  the  ballots 
and  deliver  them  to  the  secretary,  who  shall  count  the 
same  in  open  session,  and  having  stated  the  result  of  the 
count  in  writing,  shall  sign  the  same  and  hand  it  to  the 
chairman,  who  shall  announce  the  result  to  the  meeting. 

Certificate  of  election. 

Sec.  4.  A  report  of  the  proceedings  of  the  meeting 
shall  be  made  in  writing,  signed  by  the  chairman  and 
secretary,  and  verified  by  them,  and  delivered  to  the 
county  judge,  who  shall  thereupon  issue  to  each  person 
chosen  a  certificate  of  his  election,  and  shall  also  issue  an 
order  requiring  that  all  books,  papers,  and  all  property 
and  effects  be  immediately  delivered  to  the  officers  elect; 
and  the  petition  and  report,  indorsed  with  the  date  and 
fact  of  the  issuance  of  such  certificate  and  order,  shall 
be  delivered  to  the  county  clerk,  to  be  by  him  filed 
in  his  office,  and  thereafter  the  persons  thus  elected  offi- 
cers shall  be  the  duly  elected  officers,  and  hold  office  until 
the  next  regular  annui:.:  meeting,  unless  removed  under 
the  provisions  hereof. 

Fees  of  county  clerk. 

Sec.  5.  For  all  services  in  these  proceedings  the  county 
clerk  shall  receive  ten  dollars  on  the  issuance  of  the 
notice  and  ten  dollars  on  the  issuance  of  the  certificates. 

Sec.  6.  All  acts  or  parts  of  acts  conflicting  with  this 
act  are  hereby   repealed. 

Sec.  7.     This  act  shall  take  effect  immediately. 

Declared  unconstitutional  in  Chollar  etc.  Co.  v.  Wilson, 
66  Cal.  374. 


MINES    AND    MINING.  749 

An  act  for  the  better  protection  of  the  stockholders  in 
corporations  formed  under  the  laws  of  the  state  of 
California  for  the  purpose  of  carrying  on  and  con- 
ducting the   business   of  mining. 

[Approved   March   30,   1874;    1873-4,    866.     Amended    1880, 
134;   1897,  38.] 

§  1.     Books — Keeping  open  to  inspection — Posting  monthly  balances. 
§   2.      Examination  of  grounds. 
§   3.      Penalty. 

Books  of  mining  corporations. 

Section  1.  It  shall  be  the  duty  of  the  secretary  of 
every  corporation  formed  for  the  purpose  of  mining, 
or  conducting  mining  in  California,  to  keep  a  com- 
plete set  of  books  show^ing  all  receipts  and  expendi- 
tures of  such  corporation,  the  sources  of  such  receipts, 
and  the  objects  of  such  expenditures,  and  also  all  trans- 
fers of  stock.  All  books  and  papers  shall,  at  all  times 
during  business  hours,  be  open  to  the  inspection  of  any 
bona  fide  stockholder;  and  if  any  stockholder  shall  at 
any  time  so  request,  it  shall  be  the  duty  of  the  secretary 
to  attend  at  the  office  of  said  company  at  least  one  hour 
in  the  day  out  of  regular  business  hours,  and  exhibit  such 
books  and  papers  of  the  company  as  such  stockholder  may 
desire,  who  shall  be  entitled  to  be  accompanied  by  an 
expert;  and  he  shall  also  be  entitled  to  make  copies  or  ex- 
tracts from  any  such  books  or  papers.  Any  stockholder, 
may  at  reasonable  hours,  have  permission  to  examine 
such  mining  property,  and  he  shall  be  entitled  to  be 
accompanied  by  an  expert  to  examine  such  property,  to 
take  samples,  and  to  make  such  other  examination  as 
he  may  deem  necessary.  It  shall  be  the  duty  of  the  di- 
rectors, on  the  second  Monday  of  each  and  every  month, 
to  cause  to  be  made  an  itemized  account  or  balance  sheet 
for  the  previous  month,  embracing  a  full  and  complete 
statement  of  all  disbursements  and  receipts,  showing 
from  what  sources  such  receipts  were  derived,  and  for 
what  and  to  whom  such  disbursements  or  payments  were 
made,  and  for  what  object  or  purpose  the  same  were 
made;  also  all  indebtedness  or  liabilities  incurred  or 
existing  at  the  time,  and  for  what  the  same  were  in- 
curred, and  the  balance  of  money,  if  any,  od  hand.  Such 
account  or  balance  sheet  shall  be  verified  under  oath  by 


750  APPENDIX. 

the  president  and  secretary,  and  posted  in  some  con- 
Gpicuous  place  in  the  office  of  the  company.  It  shall  be 
the  duty  of  the  superintendent,  on  the  first  Monday  of 
each  month,  to  file  with  the  secretary  an  itemized  ac- 
count, verified  under  oath,  showing  all  receipts  and  dis- 
bursements made  by  him  for  the  previous  month,  and  for 
what  said  disbursements  were  made.  Such  account  shall 
also  contain  a  verified  statement  showing  the  number 
of  men  employed  under  him,  and  for  what  purpose,  and 
the  rate  of  wages  paid  to  each  one.  He  shall  attach  to 
such  account  a  full  and  complete  report,  under  oath,  of 
the  work  done  in  said  mine,  the  amount  of  ore  extracted, 
from  what  part  of  mine  taken,  the  amount  sent  to 
mill  for  reduction,  its  assay  value»  the  amount  of  bullion 
received,  the  amount  of  bullion  shipped  to  the  office  of 
the  company  or  elsewhere,  and  the  amount,  if  any,  re- 
tained by  the  superintendent.  It  shall  also  be  his  duty 
to  forward  to  the  office  of  the  company  a  full  report,  under 
oath,  of  all  discoveries  of  ores  or  mineral-bearing  quartz 
made  in  said  mine,  whether  by  boring,  drifting,  sinking, 
or  otherwise,  together  with  the  assay  value  thereof.  All 
accounts,  reports,  and  correspondence  from  the  super- 
intendent shall  be  kept  in  some  conspicuous  place  in  the 
office  of  said  company,  and  to  be  open  to  the  inspection 
of  all  stockholders;  provided,  that  this  section  shall  apply 
only  to  mining  corporations  whose  stock  is  listed  and  of- 
fered for  sale  at  public  exchange,  and  shall  not  apply  to 
mining  corporations  whose  stock  is  not  listed  in  the 
public  exchange,  and  is  not  offered  for  public  sale. 
[Amended  February  26;  1897;  Stats.  1897,  p.  38.] 
Examination  of  grounds. 

Sec.  2.  Any  bona  fide  stockholder  of  a  corporation 
formed  under  the  laws  of  this  state  for  the  purpose  of 
mining,  shall  be  entitled  to  visit,  accompanied  by  his 
expert,  and  examine  the  mine  or  mines  owned  by  such 
corporation,  and  every  part  thereof,  at  any  time  he  may 
see  fit  to  make  such  visit  and  examination;  and  when 
such  stockholder  shall  make  application  to  the  president 
of  such  corporation,  he  shall  immediately  cause  the  sec- 
retary thereof  to  issue  and  deliver  to  such  applicant  an 
order,  under  the  seal  of  the  corporation,  directed  to  the 
superintendent,    commanding    him    to    show    and    exhibit 


MINES     AND     MINING.  751 

such  parts  of  said  mine  or  mines  as  the  party  named 
in  said  order  may  desire  to  visit  and  examine.  It  shall 
be  the  duty  of  the  superintendent,  on  receiving  such  order, 
to  furnish  such  stockholder  every  facility  for  making  a 
full  and  complete  inspection  of  said  mine  or  mines,  and 
of  the  workings  therein;  it  shall  be  his  duty  also  to  ac- 
company said  stockholder,  either  in  person  or  to  furnish 
some  person  familiar  with  said  mine  or  mines  to  accom- 
pany him  in  his  visit  to  and  through  such  mine  or  mines, 
and  every  part  thereof.  In  case  of  the  failure  or  re- 
fusal of  the  superintendent  to  obey  such  order,  such 
stockholder  shall  be  entitled  to  recover  in  any  court  of 
competent  jurisdiction,  against  said  corporation,  the  sum 
of  one  thousand  dollars  and  traveling  expenses  to  and 
from  said  mine  as  liquidated  damages,  together  with 
costs  of  suit.  In  case  of  such  refusal,  it  shall  be  the 
duty  of  the  directors  of  such  corporation  forthwith  to 
remove  the  officer  so  refusing,  and  thereafter  he  shall 
not  bfe  employed,  directly  or  indirectly,  by  such  corpora- 
tion, and  no  salary  shall  be  paid  to  him.  [Amendment 
approved  April  23,  1880;  Amendments  1880,  135  (Ban. 
ed.  400).  Took  effect  from  passage;  repealed  conflicting 
acts.] 
Penalty. 

Sec.  3.  In  case  of  the  refusal  or  neglect  of  the  presi- 
dent to  cause  to  be  issued  by  the  secretary  the  order  in 
the  second  section  of  this  act  mentioned,  such  stockholder 
shall  be  entitled  to  recover  against  said  president  the 
sum  of  one  thousand  dollars  and  costs,  as  provided  in  the 
last  section.  In  case  of  the  failure  of  the  directors  to 
have  the  reports  and  accounts  current  made  and  posted 
as  in  the  first  section  of  this  act  provided,  they  shall 
be  liable,  either  severally  or  jointly,  to  an  action  by  any 
stockholder  in  any  court  of  competent  jurisdiction  com- 
plaining thereof,  and  on  proof  of  such  refusal  or  failure, 
such  complaining  stockholder  shall  recover  judgment 
for  actual  damages  sustained  by  him,  with  costs  of  suit. 
And  each  of  such  defaulting  directors  shall  also  be  liable 
to  removal  for  such  neglect.  [Amended  February  26. 
1897;  Stats.  1897,  p.- 40.] 

Sec.  4.  All  acts  in  conflict  with  the  provisions  of  this 
act  are  hereby  repealed. 


752  APPENDIX. 

An  act    for   the    further    protection    of    stockholders    in 
mining  companies. 

tApproved    April    23,    18S0;     1880,    131     (Ban.    ed.    398). 
Amended  1897,   90.] 

§  1.     Sale  or  mortgage  of  property. 

§  2.      Stock  to  be  in  name  of  real  owner. 

S  3.     Books,   when  to  close — Stock,  how  voted. 

Directors  not  to  sell,  etc.,  unless  two  thirds  of  capital 
stock  consent. 
Section  1.  It  shall  not  be  lawful  for  the  directors  of 
any  mining  corporation  to  sell,  lease,  mortgage,  or  other- 
wise dispose  of  the  whole  or  any  part  of  the  mining 
ground  owned  or  held  by  such  corporation,  nor  to  pur- 
chase or  obtain  in  any  way  (except  by  location)  any  ad- 
ditional mining  ground,  unless  such  act  be  ratified  by 
the  holders  of  at  least  two  thirds  of  the  stock  of  such  cor- 
poration then  outstanding.  Such  ratification  may  be 
made  either  in  writing,  signed  and  acknowledged  bj*  such 
stockholders,  or  by  resolution,  duly  passed  at  any  regu- 
larly called  stockholders'  meeting.  The  certificate  of  the 
secretary  of  any  mining  corporation  reciting  such  ratifica- 
tion at  a  stockholders'  meeting,  or  the  names  of  stock- 
holders with  the  amount  of  stock  held  by  each,  and  the 
total  stock  outstanding,  signed  and  acknowledged  by  him 
in  the  manner  provided  for  acknowledgments  to  con- 
veyances of  real  property,  may  be  attached  to  or  indorsed 
upon  any  deed,  mortgage,  conveyance,  or  other  instrument, 
made  under  this  act  and  recorded  with  such  deed,  convey- 
ance, or  other  instrument,  and  the  recitals  contained  in 
such  certificate,  or  the  duly  recorded  copy  thereof,  are 
made  prima  facie  evidence  of  their  truthfulness  for  all 
purposes  whatsoever;  provided,  that  no  one  except  a 
fitockholder  in  any  such  corporation,  shall  be  permitted  to 
urge  any  objection  to  the  acquisition  of  any  additional 
ground  or  other  property  by  such  corporation.  [Amend- 
ment approved  March   9,   1897;    Stats.   1897,   p.   96.] 

Stock  to  be  in  name  of  real  owner  or  trustee. 

Sec.  2.  All  stock  in  each  and  every  mining  corpora- 
tion in  this  state  shall  stand  in  the  books  of  said  company, 
in  all  cases,  in  the  names  of  the  real  owners  of  such 
stock,  or  in  the  name  of  the  trustees  of  such  real  owners; 


NUISANCES — ORPHANS— RAILROADS.  753 

but  in  every   case   where   such   stock  shall   stand   in   the 
name   of   a   trustee,   the   party   for   whom   he   holds   such 
stock  in  trust  shall  be  designated   upon  said   books,  and 
also  in  the  body  of  the  certificate  of  such  stock. 
Books,  when  to  close — Stock,  how  voted. 

Sec.  3.  It  shall  not  be  lawful  for  any  such  corpora- 
tion, or  the  secretary  thereof,  to  close  the  books  of  said 
corporation  more  than  two  days  prior  to  the  day  of  any 
election.  At  such  election  the  stock  of  said  corporation 
shall  be  voted  by  the  bona  fide  owners  thereof,  as  shown 
by  the  books  of  said  corporation,  unless  the  certificate  of 
stock,  duly  indorsed,  be  produced  at  such  election,  in 
which  case  said  certificates  shall  be  deemed  the  highest 
evidence  of  ownership,  and  the  holder  thereof  shall  be 
entitled  to  vote  the  same. 

Sec.  4.  All  acts  and  parts  of  acts  in  conflict  with  this 
act  are  hereby  repealed. 

Sec.  5.  This  act  shall  take  effect  from  and  after  its 
passage. 


NUISANCES. 
See   act   authorizing   district  attorneys  to   abate   public 
nuisances,  passed  March  15,  1899;    Stats.  1899,  103 


ORPHANS. 
See  ante,  title  Infancy. 


RAILROADS. 
[Consult  an  act  approved   March  22,  1899;    Stats.  1899, 
p.  183,  requiring  railroads  to  equip  cars  with  fenders  and 
brakes.] 

An  act  providing  for  the  sale  of  railroad  and  other  fran- 
chises in  municipalities,  and  relative   to   granting  of 
franchises. 
[Approved  March  23,  1893;    Stats.  1893,  p.  288.     Amended 
1897,   176.     Consult   in   connection   with   this   act   the 
acts  of  1897,  p.  135,  and  1901,  p.  265.] 
Section  1.     Every    franchise    or    privilege    to    erect    or 
lay  telegraph  or  telephone  wires,  to  construct  or  operate 


764  APPENDIX. 

railroads  along  or  upon  any  public  street  or  highway,  or 
to  exercise  any  other  privilege  whatever  hereafter  pro- 
posed to  be  granted  by  the  board  of  supervisors,  or  other 
governing  or  legislative  body  of  any  county  or  district 
within  this  state,  except  renewals  of  franchises  or  privi- 
leges for  wharves,  chutes,  or  piers,  in  counties  outside  of 
the  limits  of  incorporated  cities  or  towns,  shall  be  granted 
upon  the  conditions  in  this  act  provided,  and  not  otherwise. 
The  fact  that  an  application  for  such  franchise  or  privilege 
has  been  made  to  such  board  of  supervisors  or  other  gov- 
erning or  legislative  body,  together  with  a  statement 
that  it  is  proposed  to  grant  the  same  must  first  be  ad- 
vertised in  one  or  more  daily  newspapers  in  the  county 
or  district  wherein  the  said  franchise  or  privilege  is  to 
be  exercised.  If  there  be  no  daily  newspaper  published 
in  the  district  wherein  the  said  franchise  or  privilege  is  to 
be  exercised,  then  the  publication  must  be  made  in  some 
other  daily  newspaper  of  the  county,  and  if  there  be  no 
daily  newspaper  published  in  the  county  wherein  the 
said  franchise  or  privilege  is  to  be  exercised,  then  the 
publication  must  be  made  in  a  daily  newspaper  published 
in  an  adjoining  county.  Such  advertisements  must  con- 
tinue every  day  for  at  least  ten  days,  and  must  commence 
at  least  thirty  days  before  any  further  action  of  the  board 
of  supervisors  or  other  governing  or  legislative  body. 
The  advertisement  must  state  the  character  of  the  fran- 
chise or  privilege  proposed  to  be  granted,  the  term  of 
its  continuance,  and,  if  a  street  railroad,  the  route  to  be 
traversed,  and  the  day  on  which  tenders  will  be  received 
for  the  same.  On  the  day  so  stated,  the  board  or  other 
governing  or  legislative  body  herein  mentioned,  must  meet 
in  open  session  and  read  the  tenders.  The  franchise  or 
privileges  must  then  be  awarded  to  the  highest  bidder; 
provided,  however,  that  nothing  in  this  section  shall  affect 
a  special  privilege  granted  for  a  shorter  term  than  two 
years.  [Amendment  approved  March  19,  1897;  Stats. 
1897,  p.  176.] 

Sec.  2.  Any  member  of  any  board  of  supervisors,  com- 
mon council,  or  other  governing  or  legislative  body  of 
any  county,  city  and  county,  city,  town,  or  district  of  this 
state,  who,  by  his  vote,  violates  or  attempts  to  violate 
the  provisions  of  this  act  or  any  of  them,  shall  be  guilty  of 


RAILROADS.  755 

a  misdemeanor  and  of  malfeasance  in  ofSce,  and  be  de- 
prived of  his  oflBce  by  the  decree  of  a  court  of  competent 
jurisdiction,  after  trial  and  conviction. 

Sec.  3.    This  act  shall  take  effect  immediately. 

An  act  providing  for  the  sale  of  street  railroad  and  other 
franchises  in  municipalities,  and  providing  conditions 
for  the  granting  of  such  franchises  by  jthe  legislative 
or  other  governing  bodies,  and  repealing  conflicting 
acts. 

[Approved    March    13,    1897,    p.    135.] 

See  the  following  act,  also  the  note  under  sec.  4  of  this  act. 

§  1.     Sale  of  franchises. 

§  2.     Extension  of  existing  franchises. 

§  3.     Misdemeanor. 

The  people  of  the  state  of  California,  represented  in 
senate  and  assembly,  do  enact  as  follows: 
Section  1.  Every  franchise  or  privilege  to  erect  or  lay 
telegraph  or  telephone  wires,  to  construct  or  operate 
street  railroads,  upon  any  public  street  or  highway,  to 
lay  gas  or  water  pipes,  to  erect  poles  or  wires  for  trans- 
mitting electric  power,  or  for  lighting  purposes,  along  or 
upon  any  public  street  or  highway,  or  to  exercise  any 
other  privilege  whatever  hereafter  proposed  to  be  granted 
by  the  board  of  supervisors,  board  of  trustees,  common 
council,  or  other  governing  or  legislative  body  of  any 
city  and  county,  city,  or  town  within  this  state,  except 
steam  railroads,  telegraph  lines,  and  renewal  of  franchises 
for  piers,  chutes,  and  wharves,  shall  be  granted  upon  the 
conditions  in  this  act  provided,  and  not  otherwise.  The 
fact  that  an  application  for  such  franchise  or  privilege 
has  been  made  to  such  board  of  supervisors,  board  of 
trustees,  common  council,  or  other  governing  or  legis- 
lative body,  together  with  a  statement  that  it  is  proposed 
to  grant  the  same,  must  first  be  advertised  in  one  or  more 
newspapers  of  the  city  and  county,  city,  or  town,  wherein 
the  said  franchise  or  privilege  is  to  be  exercised.  Such 
advertisement  must  state  that  bids  will  be  received  for 
such  franchise,  and  that  it  will  be  awarded  to  the  highest 
bidder,  and  such  advertisement  must  be  published  in 
such  daily  newspaper  once  a  day  for  ten  successive  days. 


756  APPENDIX. 

and  if  there  be  no  daily  newspaper  published  in  such  coun- 
ty, city  and  county,  or  city,  then  it  shall  be  published  in 
a  weekly  newspaper  published  in  such  county,  city  and 
county,  or  city,  once  a  week  for  four  weeks,  and  in  either 
case  the  full  advertisement  must  be  completed  not  less 
than  twenty  nor  more  than  thirty  days  before  any  fur- 
ther action  of  the  board  of  supervisors,  board  of  trustees, 
common  council,  or  other  governing  or  legislative  body. 
The  advertisement  must  state  the  character  of  the  fran- 
chise or  privilege  proposed  to  be  granted,  the  term  of 
its  continuance,  and  if  a  street  railroad,  the  route  to  be 
traversed;  that  sealed  bids  or  tenders  will  be  received  up 
to  a  certain  hour  on  a  day  named  therein,  and  a  further 
statement  that  no  bids  will  be  received  of  a  single  sum 
or  amount  stated,  but  that  all  bids  must  be  for  the  payment 
in  lawful  money  of  the  United  States  of  a  stated  per 
cent  of  the  gross  annual  receipts  of  the  person,  partner- 
ship, or  corporation,  or  other  authority  to  whom  the 
franchise  is  awarded,  arising  from  its  use,  operation, 
or  possession.  No  percentage  shall  be  paid  for  the  first 
five  years  succeeding  the  date  of  the  franchise,  but  there- 
after such  percentage  shall  be  payable  annually,  and 
shall  in  no  case  be  less  than  three  per  cent  per  annum 
upon  such  gross  receipts,  the  franchise  to  be  forfeited 
by  failure  to  make  the  payments  stated  in  the  bids  upon 
which  the  award  was  made;  provided,  the  board  of 
supervisors,  board  of  trustees,  common  council,  or  other 
governing  or  legislative  body  may  provide  as  a  condition 
of  such  franchise  that  the  payments  of  said  percentage 
shall  begin  at  any  time  less  than  five  years  after  the 
franchise  is  granted,  if  such  franchise  is  a  renewal,  or 
substantially  a  renewal,  of  a  franchise  already  in  exist- 
ence. After  the  expiration  of  the  time  stated  in  the  ad- 
vertisement up  to  which  sealed  bids  or  proposals  will 
be  received,  the  board  or  other  governing  or  legislative 
body  herein  mentioned,  must  meet  in  open  session  and 
open  and  read  the  tenders  or  bids.  The  franchise  or 
privileges  must  then  be  awarded  to  the  highest  bidder; 
provided,  however,  that  nothing  in  this  section  shall  af- 
fect a  special  privilege,  granted  for  a  shorter  term  than 
two  years;  and  provided  further,  that  the  governing  power 
may  reject  any  or  all  bids.     And  provided  further,   that 


RAILROADS.  75T 

unless  the  bidder  shall  file  with  his  bid  a  bond  to  such 
county,  city  and  county,  city,  town,  or  district,  with  at 
least  two  good  and  sufficient  sureties,  to  be  approved  by 
such  board  or  other  governing  or  legislative  body  in  a 
penal  amount  to  be  by  it  prescribed  and  set  forth  in  the 
advertisement  for  bids,  conditioned  that  such  bidder  shall 
well  and  truly  observe,  fulfill,  and  perform  each  and  all 
of  the  terms,  conditions,  and  obligations  of  such  franchise, 
in  case  the  same  shall  be  awarded  to  him,  and  that  in 
case  of  any  breach  of  condition  of  such  bond,  the  whole 
amount  of  the  penal  sum  therein  named  shall  be  taken  and 
deemed  to  be  liquidated  damages,  and  shall  be  recoverable 
from  the  principal  and  sureties  upon  said  bond,  no  award 
of  any  such  franchise  shall  be  made  upon  such  bid,  al- 
though the  same  may  be  the  highest,  but  such  franchise 
may  be  awarded  to  the  next  highest  bidder,  who  shall 
have  complied  with  this  proviso,  or,  in  the  discretion  of 
such  board,  or  other  governing  or  legislative  body,  all 
bids  may  be  set  aside  and  rejected,  and  new  bids  adver-* 
tised  for. 

Sec.  2.  No  franchise  now  existing,  or  which  may 
hereafter  be  granted,  shall  be  renewed  by  the  board  of 
supervisors,  board  of  trustees,  common  council,  or  other 
governing  or  legislative  body  above  described,  nor  shall 
the  extension  or  renewal  of  the  same  be  advertised  or 
offered  for  sale  by  such  governing  or  legislative  body 
until  within  one  year  prior  to  the  date  of  the  expiration 
of  the  existing  franchise,  unless  the  existing  franchise  is 
first  surrendered  by  the  holders  thereof;  provided,  no 
franchise  can  be  surrendered  without  the  consent  of  the 
board  of  supervisors,  board  of  trustees,  common  council, 
or  other  governing  or  legislative  body  of  the  city  and  coun- 
ty, city,  or  town,  granting  such  franchise.  And  pro- 
vided further,  that  on  the  application  of  the  mayor,  or  a 
majority  of  the  board  of  supervisors,  board  of  trustees, 
common  council,  or  other  governing  or  legislative  body 
above  described,  it  shall  be  the  duty  of  the  attorney- 
general  to  sue  for  a  forfeiture  of  any  franchise  granted 
by  such  governing  or  legislative  body,  alleging  in  such 
suit  noncompliance  with  the  terms  of  the  franchise. 

Sec.  3.  Any  member  of  any  board  of  supervisors,  com- 
mon  council,   or   other   governing   or   legislative   body   of 


758  APPENDIX. 

any  city  and  county,  city,  or  town,  of  this  state,  who,  by 
his  vote,  violates  or  attempts  to  violate  the  provisions 
of  this  act,  or  any  of  them,  shall  be  guilty  of  a  misde- 
meanor and  of  malfeasance  in  office,  and  be  deprived  of 
his  office  by  the  decree  of  a  court  of  competent  jurisdic- 
tion, after  trial  and  conviction. 

Sec.  4.  All  acts  and  parts  of  acts  in  conflict  with  this 
act  are  hereby  repealed. 

This  act  was  declared  unconstitutional  in  Pereira  v. 
Wallace,  129  Cal.  397. 

See  the  following  act. 

An  act  providing  for  the  sale  of  street  railroad  and  other 
franchises  in  municipalities,  and  providing  conditions 
for  the  granting  of  such  franchises  by  legislative  or 
other  governing  bodies,  and  repealing  conflicting  acts. 

[Became  a  law  under  constitutional  provision  without 
governor's  approval,  March  11,  1901,  p.  265. 
Amended  1903,  p.  90.] 

The  people  of  the  state  of  California,  represented  in 
senate  and   assembly,   do  enact  as  follows: 

Section  1.  Every  franchise  or  privilege  to  erect  or  lay 
telegraph  or  telephone  wires,  to  construct  or  operate 
street  railroads  upon  any  public  street  or  highway,  to 
lay  gaspipes.  for  the  purpose  of  carrying  gas  for  heat  and 
power,  to  erect  poles  or  wires  for  transmitting  electric 
heat  and  power  along  or  upon  any  public  street  or  high- 
way, or  to  exercise  any  other  privilege  whatever  hereafter 
proposed  to  be  granted  by  boards  of  supervisors,  boards 
of  trustees,  or  common  councils,  or  other  governing  or 
legislative  bodies  of  any  city  and  county,  city  or  town 
within  this  state,  except  steam  railroads  and  except  tele- 
graph or  telephone  lines  doing  an  interstate  business,  and 
renewals  of  franchises  for  piers,  chutes  or  wharves,  shall 
be  granted  upon  the  conditions  in  this  act  provided,  and 
not  otherwise. 

Sec.  2.  An  applicant  for  any  franchise  or  privilege 
above-mentioned  shall  file  with  the  governing  or  legislative 
body  of  the  municipality  an  application,  and  thereupon 
said  governing  body  shall,  in  its  discretion,  advertise  the 


RAILROADS.  759 

fact  of  said  application,  together  with  a  statement  that 
it  is  proposed  to  grant  the  same,  in  one  or  more  news- 
papers of  the  city  and  county,  city  or  town  wherein  the 
said  franchise  or  privilege  is  to  be  exercised.  Said  ad- 
vertisement must  state  that  bids  will  be  received  for  such 
franchise,  and  that  it  will  be  awarded  to  the  highest. bidder, 
and  the  same  must  be  published  in  such  newspaper  once 
a  day  for  ten  successive  days,  if  it  be  a  daily  newspaper, 
and  if  there  be  no  daily  newspaper  published  in  such  city 
and  county,  city  or  town,  then  it  shall  be  published  in  a 
weekly  newspaper  once  a  week  for  four  successive  weeks, 
and  in  either  case  the  full  publication  must  be  completed 
not  less  than  twenty  nor  more  than  thirty  days  before  any 
further  action  can  be  taken  thereon.  [Amendment  ap- 
proved March  6,  1903;  Stats.  1903,  p.  90.  In  effect  im- 
mediately.] 

Sec.  3.  The  publication  must  state  the  character  of  the 
franchise  or  privilege  proposed  to  be  granted,  the  term 
for  which  it  is  granted,  and,  if  it  be  a  street  railroad,  the 
route  to  be  traversed;  that  sealed  bids  therefor  will  be 
received  up  to  a  certain  hour  and  day  named  therein, 
and  that  the  successful  bidder  and  his  assigns  must,  during 
the  life  of  said  franchise,  pay  to  the  municipality  two  per 
cent  (2%)  of  the  gross  annual  receipts  of  the  person,  part- 
nership or  corporation  to  whom  the  franchise  is  awarded, 
arising  from  its  use,  operation  or  possession.  No  per- 
centage shall  be  paid  for  the  first  five  (5)  years  succeeding 
the  date  of  the  franchise,  but  thereafter  such  percentage 
shall  be  payable  annually;  and  in  the  event  said  payment 
is  not  made,  said  franchise  shall  be  forfeited;  provided 
further,  that  if  the  franchise  be  a  renewal  of  a  right 
already  in  existence,  the  payment  of  said  percentage  of 
gross  receipts  shall  begin  at  once. 

Sec.  4.  In  case  the  franchise  granted  shall  be  an  ex- 
tension of  an  existing  system  of  street  railroad,  then 
the  gross  receipts  shall  be  estimated  to  be  one  half  of  the 
proportion  of  the  total  gross  receipts  of  said  system  which 
the  mileage  of  such  extension  bears  to  the  total  mileage 
of  the  whole  system,  and  said  estimate  shall  be  conclusive 
as  to  the  amount  of  the  gross  receipts  of  said  extension. 

Sec.  5.  Said  advertisement  shall  also  contain  a  state- 
ment that  the  said  franchise  will  be  struck  off,  sold,  and 


760  APPENDIX. 

awarded  to  the  person,  firm  or  corporation  who  shall  make 
the  highest  cash  hid  therelor;  provided,  ouly,  that  at  the 
time  of  the  opening  of  said  bids  any  responsible  person, 
firm  or  corporation  present  or  represented  may  bid  on 
said  franchise  or  privilege  a  sum  not  less  than  ten  per 
cent  above  the  highest  sealed  bid  therefor,  and  said  bid 
so  made  may  be  raised  not  less  than  ten  per  cent  by  any 
other  responsible  bidder,  and  said  bidding  may  so  con- 
tinue until  finally  said  franchise  shall  be  struck  off,  sold, 
and  awarded  by  said  governing  body  to  the  highest  bidder 
therefor  in  gold  coin  of  the  United  States.  Each  sealed 
bid  shall  be  accompanied  with  cash  or  a  certified  check, 
payable  to  the  treasurer  of  such  municipality,  for  the 
full  amount  of  said  bid,  and  no  sealed  bid  shall  be  con- 
sidered unless  said  cash  or  check  is  inclosed  therewith, 
and  the  successful  bidder  shall  deposit,  at  least  ten  per 
cent  of  the  amount  of  his  bid  with  the  clerk  of  such 
municipality  before  the  franchise  shall  be  struck  off  to 
him.  And  if  he  shall  fail  to  make  such  deposit  im- 
mediately, then  and  in  that  case,  his  bid  shall  not  be 
received,  and  shall  be  considered  as  void,  and  the  said 
franchise  shall  then  and  there  be  again  offered  for  sale 
to  the  bidder  who  shall  make  the  highest  cash  bid  therefor, 
subject  to  the  same  conditions  as  to  deposit,  as  above- 
mentioned.  Said  procedure  shall  be  had  until  said  fran- 
chise is  struck  off,  sold,  and  awarded  to  a  bidder  who  shall 
make  the  necessary  deposit  of,  at  least,  ten  per  cent  of 
the  amount  of  his  bid  therefor,  as  herein  provided.  Said 
successful  bidder  shall  deposit  with  the  clerk  of  such 
municipality,  within  twenty-four  hours  after  the  accept- 
ance of  his  bid,  the  remaining  ninety  per  cent  of  the 
amount  thereof,  and  in  case  he  or  it  shall  fail  to  do  so, 
then  the  said  deposit  theretofore  made  shall  be  forfeited, 
and  the  said  award  of  said  franchise  shall  be  void,  and 
the  said  franchise  shall  then  and  there,  by  said  governing 
body,  be  again  offered  for  sale  to  the  highest  bidder 
therefor,  in  the  same  manner,  and  under  the  same  re- 
striction as  hereinbefore  provided,  and  in  case  said  bidder 
shall  fail  to  deposit  with  the  clerk  of  such  municipality, 
the  remaining  ninety  per  cent  of  his  bid,  within  twenty- 
four  hours  after  its  acceptance,  the  award  to  him  of  said 
franchise  shall  be  set  aside,  and  the  deposit  theretofore 


RAILROADS.  7(j) 

made  by  him  shall  be  forfeited,  and  no  further  proceedings 
for  a  sale  of  said  franchise  shall  be  had  uuleas  the  same 
shall  be  readvertised  and  again  offered  for  sale,  in  the 
manner  hereinbefore  provided.  [Amendment  approved 
March  6,  1903;   Stats.  1903,  p.  90.     In  effect  immediately.] 

Sec.  6.  Work  to  erect  or  lay  telegraph  or  telephone 
wires,  to  construct  street  railways,  to  lay  gaspipes  for 
the  purpose  of  carrying  *gas  for  heat  and  power,  to  erect 
poles  or  wires  for  transmitting  electric  heat  or  power, 
along  or  upon  any  public  street  or  highway,  or  to  exercise 
any  privilege  whatever,  a  franchise  for  which  shall  have 
been  granted  in  accordance  with  the  terms  of  this  act, 
shall  be  commenced  in  good  faith  within  not  more  than 
four  months  from  the  granting  of  any  such  franchise,  and 
if  not  so  commenced  within  said  time  said  franchise  so 
granted  shall  be  declared  forfeited,  and  shall  be  completed 
Mathin  not  more  than  three  years  thereafter,  and  if  not 
so  completed  within  said  time  said  franchise  so  granted 
shall  be  forfeited;  provided,  that  for  good  cause  shown 
the  governing  or  legislative  body  may  by  resolution  extend 
the  time  for  completion  thereof,  not  exceeding  three 
months. 

Sec.  7.  The  successful  bidder  for  any  franchise  or 
privilege  struck  off,  sold,  and  awarded  under  this  act 
shall  file  a  bond  running  to  said  city  and  county,  or  city 
or  toWn,  with,  at  least,  two  good  and  sufficient  sureties, 
to  be  approved  by  such  governing  body,  in  a  penal  sum 
by  it  to  be  prescribed,  and  set  forth  in  the  advertisement 
for  bids,  conditioned  that  such  bidder  shall  well  and  truly 
observe,  fulfill,  and  perform  each  and  every  term  and 
condition  of  such  franchise,  and  that  in  case  of  any  breach 
of  condition  of  such  bond,  the  whole  amount  of  the  penal 
sum  therein  named  shall  be  taken  and  deemed  to  be 
liquidated  damages,  and  shall  be  recoverable  from  the 
principal  and  sureties  upon  said  bond.  Said  bond  shall 
be  filed  with  such  governing  body  within  five  days  after 
such  franchise  is  awarded,  and  upon  the  filing  and  approval 
of  such  bond,  the  said  franchise  shall,  by  said  governing 
or  legislative  body,  be  granted  by  ordinance  to  the  person, 
firm,  or  corporation  to  whom  it  has  been  struck  off,  sold, 
or  awarded,  and  in  case  that  said  bond  shall  not  be  so  filed, 
the  award  of  such  franchise  shall  be  set  aside,  and  any 


762  APPENDIX. 

money  paid  therefor  shall  be  forfeited,  and  said  franchise 
shall,  in  the  discretion  of  said  governing  or  legislative 
body,  be  readvertised,  and  again  offered  for  sale  in  the 
same  manner,  and  under  the  same  restrictions,  as  herein- 
before provided.  [Amendment  approved  March  6,  1903; 
Stats.  1903,   p.   91.     In  effect  immediately.] 

Sec.  8.  It  shall  be  the  duty  of  the  attorney-general, 
upon  the  complaint  of  any  municipality,  or,  in  his  dis- 
cretion, upon  the  complaint  of  any  taxpayer,  to  sue  for 
the  forfeiture  of  any  franchise  granted  under  the  terms 
of  this  act,  for  the  noncompliance  with  any  condition 
thereof. 

Sec.  9.  No  clause  or  condition  of  any  kind  shall  be 
inserted  in  any  franchise  or  grant  offered  or  sold  under 
the  terms  of  this  act,  which  shall  directly  or  indirectly 
restrict  free  and  open  competition  in  bidding  therefor, 
and  no  clause  or  provision  shall  be  inserted  in  any  fran- 
chise offered  for  sale,  which  shall  in  anywise  favor  one 
person,  firm  or  corporation,  as  against  another  in  bid- 
ding for  the  purchase  thereof. 

Sec.  10.  Any  member  of  any  common  council  or  other 
governing  or  legislative  body  of  any  city  and  county,  city 
or  town  of  this  state,  who,  by  his  vote,  violates  or  attempts 
to  violate  the  provisions  of  this  act,  or  any  of  them,  shall 
be  guilty  of  a  misdemeanor,  and  may  be  punished  therefor, 
as  provided  by  law,  and  may  be  deprived  of  his  office  by 
the  decree  of  a  court  of  competent  jurisdiction,  after  trial 
and  conviction. 

Sec.  11.  All  acts  or  parts  of  acts  in  conflict  herewith 
are  hereby  repealed;  provided,  however,  that  nothing 
herein  contained  shall  be  construed  as  repealing  or 
amending  the  following  acts,  to  wit:  "An  act  relating  to 
the  granting  by  the  counties  and  municipalities  of  fran- 
chise for  the  construction  of  paths  and  roads  for  the  use 
of  bicycles  and  other  horseless  vehicles,"  approved  March 
twenty-seventh,  eighteen  hundred  and  ninety-seven;  "An 
act  to  authorize  cities  and  towns  to  grant  franchises  for 
the  construction  and  maintenance  of  railroads  beyond  the 
limits  of  such  cities  or  towns  leading  to  public  parks 
owned  thereby,"  being  chapter  forty  [fifty]  of  the  laws  of 
eighteen  hundred  and  ninety-seven  of  the  state  of  Cali- 
fornia. 

This  act  shall  take  effect  immediately. 


RAILROADS.  763 

An  act  to  confirm,  ratify,  and  make  valid  ordinances  here- 
tofore passed  by  the  trustees,  council,  or  other  body 
intrusted  with  the  government  of  any  incorporated 
city,  city  and  county,  or  town  giving  authority  and 
permission  to  propel  cars  upon  railroad  tracks  laid 
through  the  streets  and  public  highways  of  such  in- 
corporated city,  city  and  county,  or  town,  Dy  elec- 
tricity. 
[Approved  February  25,  1891;  Stats.  1891,  p.  12.] 

Section  1.  In  all  cases  where,  prior  to  the  passage  of 
this  act,  authority  to  lay  railroad  tracks  through  streets 
or  public  highways  of  any  incorporated  city,  city  and 
county,  or  town,  has  been  obtained  for  a  term  of  years, 
not  exceeding  fifty,  from  the  trustees,  council,  or  other 
body  to  whom  was  intrusted  the  government  of  the  city, 
city  and  county,  or  town,  and  permission  has  been  granted 
by  such  governing  body  to  propel  cars  upon  such  tracks 
by  electricity,  such  authority  and  permission  shall  be, 
and  shall  be  held  and  deemed,  as  valid  and  legal  as  the 
same  would  have  been  if,  at  the  time  of  the  obtaining 
thereof,  section  four  hundred  and  ninety-seven  of  the  Civil 
Code  had  expressly  declared  that  permission  might  be 
given  to  propel  cars  upon  such  tracks  by  electricity,,  as 
well  as  bj''  horses,  mules,  or  wire  ropes  running  under  the 
streets  and  propelled  by  stationary  steam  engines;  pro- 
vided, that  all  such  permissions  or  franchises  heretofore 
granted  shall  be  subject  to  the  provisions  of  the  laws  of 
this  state  applicable  to  street  railroads  in  general,  and 
subject  to  the  same  regulations  from  city,  city  and  county, 
and  town  authorities  as  if  the  said  franchises  were  here- 
after granted. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

An  act  to   enable  railroad   companies  to   complete   their 
railroads. 

[Approved  April  1,  1878;   1877-8,  944.] 

Authorizing  construction  of  railroads. 

Section  1.  Every  railroad  company  heretofore  organized 
under  the  laws  of  this  state,  and  which  has  completed  a 


764  APPENDIX. 

portion  of  its  road  prior  to  the  passage  of  this  act,  is 
hereby  authorized  and  empowered  to  complete  its  road  as 
described  in  its  articles  of  incorporation,  notwithstanding 
it  may  not  have  begun  the  construction  of  its  road  within 
two  years  after  filing  its  original  articles  of  incorporation, 
and  notwithstanding  it  may  not  have  completed  and  put 
in  operation  five  miles  of  its  road  each  year  thereafter. 

Sec.  2.  This  act  shall  take  effect  from  and  after  its 
passage. 

An  act  permitting  and  authorizing  railway  and  other  cor- 
porations, organized  under  the  laws  of  this  state,  or 
of  any  state  or  territory  of  the  United  States  of 
America,  or  any  act  of  congress  of  the  United  States 
of  America,  to  do  business  in  this  state  on  equal 
terms. 
[Approved  April  3,  1880;  1880,  21  (Ban.  ed.  114).] 

Equal  terms  for  all  railway  corporations. 

Section  1.  That  every  railway  corporation,  and  every 
corporation  organized  for  the  purpose  of  carrying  freights 
or  passengers,  which  has  or  may  be  created  or  organized 
under  or  by  virtue  of  any  of  the  laws  of  any  state  or 
territory  of  the  United  States  of  America,  or  any  act  of 
congress  of  the  United  States  of  America,  may  hereafter 
build  railways,  exercise  the  right  of  eminent  domain,  and 
do  or  transact  any  other  business  which  such  corporation 
might,  if  the  same  had  been  created  or  organized  under 
or  by  virtu^  of  the  laws  of  this  state,  having  the  same 
rights,  privileges,  and  immunities,  and  subject  to  the  same 
laws,  penalties,  and  obligations,  and  burdens,  as  though 
said  corporations  had  been  created  by  or  organized  under 
the  laws  of  the  state  of  California. 
Railroad  corporations  may  contract  with  one  another. 

Sec.  2.  Railroad  corporations  doing  business  in  this 
state  and  organized  under  any  lp,w  of  this  state,  or  the 
United  States,  or  of  any  state  or  territory  thereof,  have 
power  to  enter  into  contracts  with  one  another,  whereby 
the  one  may  lease  of  the  other  the  whole  or  any  part  of 
its  railroad,  or  may  acquire  of  the  other  the  right  to  use, 
in  common  with  it,  the  whole  or  any  pai't  of  its  railroad. 

Sec.  3.  All  laws  inconsistent  with  this  act  are  hereby 
repealed. 


RAILROADS.  765 

An  act  to  provide  for  the  management  and  operation  of 
railroads  above  certain  elevations. 

[Approved  February  9,  1897,  p.  5.] 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 
Section  1.  All  railroads  operated  in  this  state  whose 
lines  of  road  are  wholly  constructed  at  an  elevation  of 
five  thousand  feet,  or  more,  above  the  level  of  the  sea, 
shall  only  be  required  to  maintain  and  operate  their  roads, 
or  to  run  passenger  or  freight  cars  thereon,  between  the 
fifteenth  day  of  May,  and  the  fifteenth  day  of  October  in 
each  year. 

An   act   to    compel    railroad    corporations,    or    individuals 
owning  railroads,  to  operate  their  roads. 

[Approved  April  15,  1880;   1880,  43    (Ban.  ed.  205).] 

Operation  of  railroads,  or  forfeiture. 

Section  1.  From  and  after  the  completion  of  any  rail- 
road, or  the  completion  of  such  portion  thereof  capable 
of  being  operated,  it  shall  be  the  duty  of  the  corporation, 
or  individual  owning  the  same,  to  operate  it;  and  upon 
the  failure  of  said  corporation  or  individual  so  owning  said 
road  to  keep  the  same,  or  any  part  thereof,  in  full  operation 
for  the  period  of  six  months,  its  or  his  right  to  operate 
the  same  in  whole  or  in  part,  as  the  case  may  be,  shall 
be  forfeited;  and  the  lands  occupied  for  the  purposes  of 
Its  or  his  road,  so  far  as  the  same  shall  not  be  operated, 
shall  revert  to  the  original  owners^  or  their  successors 
in  interest.  A  railroad  shall  be  deemed  to  be  in  full  opera- 
tion when  one  passenger  train,  or  one  mixed  train,  is  run 
over  it  once  each  day  in  each  direction,  and  a  sufficient 
number  of  freight  trains  to  accommodate  the  traffic  on  said 
road. 

Prevention  of  operation. 

Sec.  2.  This  act  shall  not  be  construed  to  apply  to  a 
case  where  the  operation  of  the  road  is  prevented  by  the 
act  of  God,  nor  to  a  case  where  the  operation  of  said  road, 
together  with  its  branch  or  trunk  lines,  does  not  yield 
income  sufficient  to   defray   the   expenses   of  maintaining 


766  APPENDIX. 

and    operating    the    same    in    connection    with    its    said 

branch  or  trunk  lines. 

Duty  of  railroad  commissioners. 

Sec.  3.  The  railroad  commissioners  of  the  state  of 
California  shall  have  the  power  to  examine  and  determine 
the  question  whether  said  road,  together  with  its  said 
branch  and  trunk  lines,  does  or  does  not  yield  income 
sufficient '  to  operate  the  same. 

Sec.  4.     This  act  shall  take  effect  immediately. 

An  act  to  create  the  office  of  commissioner  of  transpor- 
tation, and  to  define  its  powers  and  duties;  to  fix  the 
maximum  charges  for  transporting  passengers  ani 
freights  on  certain  railroads;  and  to  prevent  extortion 
and  unjust  discrimination  thereon. 

[Approved  April  1,   1878;    1877-8,  969.] 

This  act,  which  repealed  the  previous  act  of  similar 
character  of  April  3,  1876,  Stats.  1875-6,  783,  was  super- 
seded by  the  operation  of  the  constitution  adopted  iu 
May,  1879."  The  following  act  of  1880  was  intended  to 
put  the  provisions  of  the  constitution  in  reference  to  the 
subject  into  operation. 

An  act  to  organize  and  define  the  powers  of  the  board  of 
railroad  commissioners. 

[Approved  April  15,  1880;  1880,  45  (Ban.  ed.  207),]  ' 


§  1. 

Board  of   railroad  commissioners. 

§    2. 

Salaries— Expenses. 

§     3. 

Free  passes. 

§    4. 

Duty  of  attorney-general  and  district  attorney. 

§     5. 

Location  of  office— Sessions  of  board. 

§     6. 

Seal. 

§    V. 

Powers  of  board. 

§     8. 

Powers  of  officers. 

§     9.. 

Complaints. 

§  10. 

When  may  sue. 

§11. 

Rates. 

§12. 

Jurisdiction. 

§13. 

Demands  from  companies. 

§14. 

Definition. 

§15. 

Salaries,  how  paid. 

"Board  of  railroad  commissioners." 

Section  1.     The  three  persons  elected  railroad  commis- 
sioners, pursuant  to  the  provisions  of  section  tv/enty-two 


RAILROADS.  761 

of  article  twelve  of  the  constitution  of  this  state,  con- 
stitute, and  shall  be  known  and  designated  as,  the  '"  board 
of  railroad  commissioners  of  the  state  of  California."  They 
shall  have  power  to  elect  one  of  their  number  president 
of  said  board,  to  appoint  a  secretary,  to  appoint  a  bailifl!, 
who  shall  perform  the  duties  of  janitor;  also,  to  employ 
a  stenographer,  whenever  they  may  deem  it  expedient. 
Salaries — Expenses. 

Sec.  2.  The  salary  of  each  commissioner  shall  be  four 
thousand  dollars  per  annum;  the  salary  of  the  secretary 
shall  be  twenty-four  hundred  dollars  per  annum;  the  salary 
of  the  bailiff  shall  be  twelve  hundred  dollars  per  annum, 
such  salaries  to  be  paid  by  the  state  of  California  in  the 
same  manner  as  the  salaries  of  state  officers  are  paid. 
The  stenographer  shall  receive  a  reasonable  compensation 
for  his  services,  the  amount  to  be  fixed  by  the  state  board 
of  examiners,  and  paid  by  the  state.  Said  commissioners, 
and  the  persons  in  their  official  employment  when  travel- 
ing in  the  performance  of  their  official  duties,  shall  have 
their  traveling  expenses  other  than  transportation  paid, 
the  amounts  to  be  passed  on  by  the  state  board  of  ex- 
aminers, and  paid  by  the  state.  Said  board  of  railroad 
commissioners  shall  be  allowed  one  hundred  dollars  per 
month  for  office  rent,  and  fifty  dollars  per  month  lor  fuel, 
lights,  postage,  expressage,  subscription  to  publications 
upon  the  subject  of  transportation,  and  other  incidental 
expenses,  to  be  paid  by  the  state;  provided,  that  all  moneys 
remaining  unexpended  at  the  expiration  of  each  fiscal 
year  shall  be  returned  to  the  state  treasury.  Said  board 
is  further  authorized  to  expend  not  to  exceed  four  hundred 
dollars  for  office  furniture  and  fixtures,  to  be  paid  by  the 
state.  The  state  shall  furnish  said  board  with  all  neces- 
sary stationery  and  printing,  upon  requisitions  signed  by 
the  president  of  said  board. 
Free  passes. 

Sec.  3.  Said  commissioners,  and  the  persons  in  their 
official  employment,  shall,  when  in  the  performance  of 
their  official  duties,  have  the  right  to  pass  free  of  charge 
on  all  railroads,  steamers,  ships,  vessels,  and  boats,  and 
on  all  vehicles  employed  in  or  by  any  railroad  or  other 
transportation  company  engaged  in  the  transportation 
of  freight  and  passengers  within  this  state. 


T68  APPENDIX. 

Duties  of  attorney-general  and  district  attorney. 

Sec.  4.  It  shall  be  the  duty  of  the  attorney-general, 
and  the  district  attorney  in  every  county,  on  request  of 
said  board,  to  institute  and  prosecute,  and  to  appear  and 
to  defend  for  said  board,  in  any  and  all  suits  and  pro- 
ceedings which  they  or  either  of  them  shall  be  requested 
by  said  board  to  institute  and  prosecute,  and  to  app  ar  in 
all  suits  and  proceedings  to  which  the  board  is  a  party, 
shall  have  precedence  over  all  otlier  business  except 
criminal  business;  provided,  that  said  board  shall  have  the 
power  to  employ  additional  counsel  to  assist  paid  attorney- 
general,  or  said  district  attorney,  or  otherwise,  when  in 
their  judgment  the  exigencies  of  the  case  may  so  require. 
The  fees  and  expenses  of  said  additional  counpel  to  be 
determined  by  the  state  board  of  examiners,  and  paid  by 
the  state. 

Location  of  office — Sessions  of  board. 

Sec.  5.  The  office  of  said  board  shall  be  in  the  city  of 
San  Francisco.  Said  office  shall  always  be  open  (legal 
holidays  and  nonjudicial  days  excepted).  The  board  shall 
hold  its  sessions  at  least  once  a  month  in  said  city  of 
San  Francisco,  and  at  such  other  times  and  such  other 
places  within  this  state  as  may  be  expedient.  The  ses- 
sions of  said  board  shall  be  public,  and  when  held  at  a 
place  other  than  the  office  in  the  city  of  ban  Francisco, 
notice  thereof  shall  be  published  once  a  week  for  two 
successive  weeks  before  the  commencement  of  such  ses- 
sion, in  a  newspaper  published  in  the  county,  where  such 
session  is  to  be  held;  and  if  no  newspaper  is  published 
in  such  county,  then  in  a  newspaper  published  in  an 
adjacent  county.  Such  publication  to  be  paid  by  the  state 
in  the  manner  as  other  publications  authorized  by  law 
are  paid. 

Seal. 

Sec.  6.  The  board  shall  have  a  seal,  to  be  devised  by 
its  members,  or  a  majority  thereof.  Such  seal  shall  have 
the  following  inscription  surrounding  it:  "Railroad  com- 
mission, state  of  California."  The  seal  shall  be  affixed 
only  to,  first,  writs;  second,  authentications  of  a  copy  of 
a  record  or  other  proceeding,  or  copy  of  a  document  on 
file  in  the  office  of  said  commission. 


RAILROADS.  769 

Powers  of  board. 

Sec.  7.  The  process  issued  by  said  board  shall  extend 
to  all  parts  of  the  state.  The  board  shall  have  power  to 
issue  writs  of  summons  and  of  subpoena  in  like  manner  as 
courts  of  record.  The  summons  shall  direct  the  defendant 
to  appear  and  answer  within  fifteen  days  from  the  day 
of  service.  The  necessary  process  issued  by  the  board 
may  be  served  in  any  county  in  this  state  by  the  bailiff 
of  the  board,  or  by  any  person  authorized  to  serve  process 
of  courts  of  record. 

Powers  of  officers. 

Sec.  8.  The  secretary  of  said  board  shall  issue  all  pro- 
cess and  notices  required  to  be  issued,  and  do  and  perform 
such  other  duties  as  the  board  may  prescribe.  The  bailiff 
shall  preserve  order  during  the  sessions  of  said  board,  and 
shall  have  authority  to  make  arrests  for  disturbances.  He 
shall  also  have  authority,  and  it  shall  be  his  duty,  to  serve 
all  process,  orders,  and  notices  issued  by  said  boards, 
when  directed  by  the  president,  and  make  return  of  the 
same. 

Complaints  and  decisions  to  be  in  writing. 

Sec.  9.  All  complaints  before  said  board  shall  be  in 
writing  and  under  oath.  All  decisions  of  said  board  shall 
be  given  in  writing,  and  the  grounds  of  the  decisions  shall 
be  stated.  A  record  of  the  proceedings  of  said  board 
shall  be  kept,  and  the  evidence  of  persons  appearing  before 
said  board  shall  be  preserved. 

When  may  sue. 

Sec.  10.  Whenever  the  board  shall  render  any  decision 
within  the  purview  and  pursuant  to  the  authority  vested 
in  said  board  by  section  twenty-two  of  article  twelve  of 
the  constitution,  said  board,  or  the  person,  copartnership, 
company,  or  corporation  making  the  complaint  upon  which 
such  decision  was  rendered,  is  authorized  to  sue  upon  such 
decision  in  any  court  of  competent  jurisdiction  in  this 
state. 

Rates. 

Sec.  11.  Whenever  said  board,  in  the  discharge  of  its 
duties,  shall  establish  or  adopt  rates  of  charges  for  the 
transportation  of  passengers  and  freight,  pursuant  to  the 

Civ.  Code— 33 


770  APPENDIX. 

provisions  of  tlie  constitution,  said  board  shall  serve 
a  printed  schedule  of  such  rates,  and  of  any  changes  that 
may  be  made  in  such  rates,  upon  the  person,  copartnership, 
company,  or  corporation  affected  thereby;  and  upon  such 
service,  it  shall  be  the  duty  of  such  person,  copartnership, 
company,  or  corporation  to  immediately  cause  copies  of 
the  same  to  be  posted  in  all  its  offices,  station-houses, 
vi^arehouses,  and  landing  offices  affected  by  such  rates,  or 
change  of  rates,  in  such  manner  as  to  be  accessible  to 
public  inspection  during  usual  business  hours.  Said 
board  shall  also  make  such  further  publication  thereof  as 
they  shall  deem  proper  and  necessary  for  the  public  good. 
If  the  party  to  be  served,  as  hereinbefore  provided,  be  a 
corporation,  such  service  may  be  made  upon  the  president, 
vice-president,  secretary,  or  managing  agent  thereof,  and 
if  a  copartnership,  upon  any  partner  thereof.  The  rates 
of  charges  established  or  adopted  by  said  board,  pur- 
suant to  the  constitution  and  this  act,  shall  go  into  force 
and  effect  on  the  twentieth  day  after  service  of  said 
schedule  of  rates,  or  changes  in  rates,  upon  the  person, 
copartnership,  company,  or  corporation  affected  thereby, 
as  hereinbefore  provided. 

Jurisdiction. 

Sec.  12.  When  jurisdiction  is,  by  the  constitution,  con- 
ferred on  the  board  of  railroad  commissioners,  all  the 
means  necessary  to  carry  it  into  effect  are  also  conferred 
on  said  board,  and  when  in  the  exercise  of  jurisdiction 
within  the  purview  of  the  authority  conferred  on  .  said 
board  by  the  constitution  the  course  of  proceeding  be  not 
specifically  pointed  out,  any  suitable  process  or  mode  of 
proceeding  may  be  adopted  by  the  board  which  may 
appear  most  conformable  to  the  spirit  of  the  constitu- 
tion. 

Demand  from  transportation  commissioner  under  act  of 
April  1,  1878. 
Sec.  13.  The  said  board  shall,  immediately  after  enter- 
ing upon  the  performance  of  its  duties,  demand  and 
receive  from  the  transportation  commissioner,  appointed 
under  an  act  approved  April  first,  eighteen  hundred  and 
seventy-eight,  section  nine,  chapter  one,  all  public  property 
belonging  to  the  office  of  said  transportation  commissioner, 


RAILROADS.  771 

in  his  possession,  or  under  liis  control,  and  it  is  hereby 
made  his  duty  to  deliver  the  same  to  the  said  board. 
Definition  of  term   "transportation   companies." 

Sec.  14.  The  term  "  transportation  companies "  shall 
be  deemed  to  mean  and  include: 

1.  All  companies  owning  and  operating  railroads  (other 
than  street  railroads)  within  this  state; 

2.  All  companies  owning  and  operating  steamships  en- 
gaged in  the  transportation  of  freight  or  passengers  from 
and  to  ports  within  this  state; 

3.  All  companies  owning  and  operating  steamboats  used 
in  transporting  freight  or  passengers  upon  the  rivers  or 
inland  waters  of  this  state. 

The  word  "  company,"  as  used  in  this  act,  shall  be 
deemed  to  mean  and  include  corporations,  associations, 
partnerships,  trustees,  agents,  assignees,  and  individuals." 
Whenever  any  railroad  company  owns  and  operates  in 
connection  with  its  road,  and  for  the  purpose  of  trans- 
porting its  cars,  freight,  or  passengers,  any  steamer  or 
other  water-craft,  such  steamer  or  other  water-craft  shall 
be  deemed  part  of  its  said  road.  "Whenever  any  steamship 
or  steamboat  company  owns  and  operates  any  barge, 
canalboat,  steamer,  tug,  ferryboat,  or  lighter,  in  connection 
with  its  ships  or  boats,  the  thing  so  owned  and  operated 
shall  be  deemed  to  be  part  of  its  main  line. 

Salaries,  how  paid. 

Sec.  15.  The  salaries  of  the  commissioners,  secretary, 
bailiff,  and  all  other  officers  and  attaches  in  any  manner 
employed  by  the  board  of  commissioners,  and  all  expenses 
of  every  kind  created  under  this  act,  shall  be  paid  out  of 
any  money  in  the  general  fund  not  otherwise  appropriated, 
and  the  controller  of  state  is  hereby  authorized  and 
directed  to  draw  his  warrants  from  time  to  time  for  such 
purposes,  and  the  state  treasurer  is  hereby  authorized 
and  directed  to  pay  the  same. 

Sec.  16.     This  act  shall  take  effect  immediately. 

An  act  to  limit  and  fix  the  rates  of  fares  on  street  railroads 
in  cities  and  towns  of  more  than  one  hundred  thousand 
inhabitants. 

[Approved  January  1,   1878;    1877-8,   18.] 


772  APPENDIX. 

Rates  of  fare  of  street  railroads. 

Section  1.  No  street  railroad  in  any  city  or  town  of  this 
state  with  more  than  one  hundred  thousand  Inhabitants 
shall  be  allowed  to  charge  or  collect  a  higher  rate  of  fare 
than  five  cents  for  each  passenger  per  trip  of  any  distance 
in  one  direction,  either  going  or  coming,  along  any  part  of 
the  whole  length  of  the  road  or  its  connections. 

Violation  and  forfeiture. 

Sec.  2.  Every  violation  of  the  provisions  of  section  one 
of  this  act  shall  subject  the  owner  or  owners  of  the  street 
railroad  violating  the  same  to  a  forfeiture  to  the  person 
so  unlawfully  charged,  or  paying  more  than  is  therein 
allowed  to  be  charged,  the  sum  of  two  hundred  and  fifty 
dollars  for  each  and  every  instance  when  such  unlawful 
charge  is  made  or  collected,  to  be  recovered  by  suit  in 
any  court  of  competent  jurisdiction;  such  causes  of  action 
shall  be  assignable,  and  the  action  may  be  maintained  by 
the  assignee  in  his  own  name,  and  several  causes  of  action 
arising  out  of  unlawful  charges  or  collections  from  dif- 
ferent persons  may  be  vested  in  the  assignee  and  united 
in  the  same  action. 

Sec.  3.    This  act  shall  be  in  force  from  its  passage. 

An  act  relating  to  the  operation  of  railroads. 
[Approved  March  23,  1893;    Stats.  1893,  208.] 

Section  1.  Every  railroad  company  now  or  hereafter 
engaged  in  the  business  of  operating  a  railroad  or  rail- 
roads, by  steam  motive  power,  in  the  state  of  California, 
is  hereby  authorized  and  empowered  to  use  electi'icity  or 
steam,  or  both  electricity  and  steam,  for  the  purpose  of 
propelling  cars  or  trains  on  such  railroad  or  railroads,  or 
upon  any  portion  thereof;  provided,  that  in  incorporated 
cities  and  towns  having  more  than  five  thousand  inhabit- 
ants, authority  must  first  be  obtained  from  the  legislative 
authority  of  such  city  or  town  in  the  same  manner  in 
which  franchises  are  granted. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  with  this 
act  are  hereby  repealed. 

Sec.  3.     This  act  shall  take  effect  immediately. 


RAILROADS.  773 

An  act  to  limit  the  time  within  which  franchises  or  privi- 
leges for  the  construction,  extension,  or  operation  of 
street  railroads  may  be  granted  by  boards  of  super- 
visors of  the  several  counties,  and  cities  and  counties 
of  this  state. 
[Approved  February  24,  1893;    Stats.  1893,   29.] 

Section  1.  It  shall  be  unlawful  f«>f  the  board  of  super- 
visors of  any  county  or  city  and  county,  within  the  ninety 
days  next  preceding  the  date  of  holding  a  general  election, 
and  within  the  seventy  days  next  immediately  following, 
including  the  day  of  holding  such  general  election,  to 
authorize  or  pass  any  ordinance,  order,  or  resolution  grant- 
ing to  any  person  or  persons,  or  association  of  persons, 
or  corporation  whatsoever,  any  privilege  or  franchise 
for  the  construction,  extension,  or  operation  of  any  street 
railroad,  or  extension  of  time  for  the  construction  or 
operation  of  any  street  railroad,  over  or  upon  any  or  part 
of  any  street,  road,  highway,  squares,  or  park  within  the 
county  or  city  and  county. 

Sec.  2.  Any  franchise  or  privilege  granted,  or  attempted 
to  be  granted,  in  violation  of,  or  contrary  to,  the  provisions 
of  this  act  shall  be  absolutely  void  and  of  no  effect. 

Sec.  3.  All  acts  or  parts  of  acts  in  conflict  with  this  act 
are  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 

Compare  in  connection  with  this  act  the  act  of  1901, 
p.    265. 

An  act  requiring  city,  city  and  county,  or  town  authorities 
to  exact  and  require  from  persons  or  corporations 
seeking  permission  and  authority  to  lay  railroad  tracks 
through  streets  or  public  highways  of  any  incorporated 
city,  city  and  county,  or  town,  a  satisfactory  promise 
and  undertaking  to  permit  and  allow  mail  carriers  in 
the  employ  of  the  United  States  government  at  all 
times,  while  engaged  in  the  actual  discharge  of  duty, 
to  ride  on  the  cars  of  such  railroad  without  paying 
fare;  and  to  make  such  promise  and  undertaking  a 
condition  precedent  to  the  granting  of  such  permission 
and  authority  by  such  governing  board. 

[Approved  February  27,  1893;  Stats.  1893,  44.] 


774  APPENDIX. 

Section  1.  In  all  cases  hereafter,  where  application  Is 
made  to  the  city,  city  and  county,  or  town  authorities,  or 
to  the  trustees,  council,  or  other  body  to  whom  is  intrusted 
the  government  of  the  city,  city  and  county,  or  town,  for 
permission  and  authority  to  lay  railroad  tracks  through 
streets  or  public  highways  of  any  incorporated  city,  city 
and  county,  or  town,  such  authorities,  before  grant- 
ing such  permission  and  authority,  in  addition  to  the 
terms  and  restrictions  which  they  are  now,  by  law,  author- 
ized to  impose,  must  exact  and  require  from  the  persons 
or  corporation  asiving  or  seeking  such  permission  and 
authority,  a  satisfactory  promise  and  undertaking  to  permit 
and  allow  mail  carriers  in  the  employ  of  the  United  States 
government,  at  all  times  while  engaged  in  the  actual  dis- 
charge of  duty,  to  ride  on  the  cars  of  such  railroad 
without  paying  any  sum  of  money  whatever  for  fare  or 
otherwise.  And  such  governing  body  of  city,  city  and 
county,  or  town  authorities  must  make  such  promise  and 
undertaking  on  the  part  of  such  persons  or  corporations  a 
condition  precedent  to  the  granting  of  such  permission 
and  authority  to  lay  railroad  tracks  through  streets  or 
public  highways  of  such  city,  city  and  county,  or  town; 
provided,  that  all  such  permissions  and  franchises  shall  be 
subject  to  all  other  provisions  of  the  laws  of  this  state 
applicable  to  street  railroads  in  general,  and  subject  to 
regulations  from  city,  city  and  county,  and  town  authori- 
ties. 

Sec.  2.  This  act  shall  take  effect  and  be  in  tull  force 
from  and  after  its  passage. 


TAXATION. 

An  act  imposing  a  tax  on  the  issue  of  certificates  of  stock 
corporations. 

[Approved  April  1,  1878;  1877-8,  955.    Repealed  1897,  243.] 


TELEGRAPH    COMPANIES. 

^ct  granting  franchise  for  telegraph  company  between 
Asia  and  America:    See  Stats.  1871-2,  97. 


TRADEMARKS.  775 

TRADEMARKS. 

An  act  to  protect  the  owners  of  bottles,  boxes,   siphono, 

and  kegs  used  in  the  sale  of  soda  waters,  mineral  or 

aerated   waters,   porter,    ale,    cider,   ginger   ale,   milk, 

cream,  small  beer,  lager  beer,  weiss  beer,  beer,  white 

beer,  or  other  beverages. 

[Approved    March    31,    1891;    Stats.    1891,   217.     Amended 

1903,  83.] 

§  1.  Description  to  be  filed  with  county  clerk. 

§  2.  Unlawful  acts. 

§  3.  Use  presumptively  unlawful. 

I  4.  Issue  of  search-warrants — Punishment, 

§  5.  Deposit  not  to  be  deemed  a  sale. 

§  6.  Refiling  of  marks  not  required.. 

Section  1.  Any  and  all  persons  engaged  in  manufactur- 
ing, bottling,  or  selling  soda  waters,  mineral  or  aerated 
waters,  porter,  ale,  beer,  cider,  ginger  ale,  milk,  cream, 
small  beer,  lager  beer,  weiss  beer,  white  beer,  or  other 
beverages  in  bottles,  siphons,  or  kegs,  with  his,  her,  its,  or 
their  name  or  names,  or  other  marks  or  devices  branded, 
stamped,,  engraved,  etched,  and  blown,  impressed,  or 
otherwise  produced  upon  such  bottles,  siphons,  or  kegs, 
or  the  boxes  used  by  him,  her,  it,  or  them,  may  file  in  the 
oflBce  of  the  clerk  of  the  county  in  which  his,  her,  its,  or 
their  principal  place  of  business  is  situated,  and  also  in 
the  office  of  the  secretary  of  state,  a  description  of  the 
name  or  names,  marks  or  devices,  so  used  by  him,  her,  it, 
or  them,  respectively,  and  cause  such  description  to  be 
printed  once  in  each  week  for  three  weeks  successively, 
in  a  newspaper  published  in  the  county  in  which  said 
notice  may  have  been  filed  as  aforesaid. 

Sec.  2.  It  is  hereby  declared  to  be  unlawful  for  any 
person  or  persons,  corporation  or  corporations,  to  fill  with 
soda  waters,  mineral  or  aerated  waters,  porter,  ale,  cider, 
ginger  ale,  milk,  cream,  beer,  small  beer,  lager  beer,  weiss 
beer,  white  beer,  or  other  beverages,  or  with  medicine, 
compounds,  or  mixtures,  any  bottle,  box,  siphon,  or  keg,  so 
marked  or  distinguished,  as  aforesaid,  with  or  by  any  name, 
mark,  or  device,  of  which  a  description  shall  have  been 
filed  and  published,  as  provided  in  section  one  of  this  act, 
or  deface,  erase,  obliterate,  cover  up,  or  otherwise  remove 
or  conceal  any  such  name,  mark  or  device  thereon,  or  to 
sell,  buy,  give,  take,  or  otherwise  dispose  of  or  traflic  in 
the  same,  without  the  written  consent  of,  or  unless  the 


776  APPENDIX. 

same  shall  have  been  purchased  from  the  person  or  per- 
sons, corporation  or  corporations,  wliose  mark  or  device 
shall  be  or  shall  have  been  in  or  upon  the  bottle,  box, 
siphon,  or  keg  so  filled,  trafficked  in,  used,  or  handled  as 
aforesaid.  Any  person  or  persons  or  corporation  offending 
against  the  provisions  of  this  section  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  punished  for  the 
first  offense  by  imprisonment  not  less  than  ten  days  nor 
more  than  six  months,  or  by  a  fine  of  fifty  cents  for  eacli 
and  every  such  bottle,  box,  siphon,  or  keg  so  filled,  sold, 
used,  disposed  of,  bought,  or  trafficked  in,  or  by  both  such 
tine  and  imprisonment;  and  for  each  subsequent  offense 
by  imprisonment  not  less  than  twenty  days  nor  more  than 
one  year,  or  by  a  fine  of  not  less  than  one  dollar  nor 
more  than  five  dollars,  for  each  and  every  bottle,  box, 
siphon,  and  keg  so  filled,  sold,  used,  disposed  of,  bought 
or  trafficked  in,  or  by  both  such  fine  and  imprisonment,  in 
the  discretion  of  the  magistrate  before  w^hom  the  offense 
shall  be  tried. 

Sec.  3.  The  use  by  any  person  other  than  the  person 
or  persons,  corporation  or  corporations,  whose  device, 
name  or  mark  shall  be  or  shall  have  been  upon  the  same, 
without  such  written  consent  or  purchase,  as  aforesaid,  of 
any  such  mark  or  distinguished  bottle,  box,  siphon,  or  keg, 
a  description  of  the  name,  mark,  or  device  whereon  shall 
have  been  filed  and  published,  as  herein  provided,  for  the 
sale  therein  of  soda  waters,  mineral  or  aerated  waters, 
porter,  ale,  cider,  ginger  ale,  milk,  cream,  beer,  small  beer, 
lager  beer,  weiss  beer,  white  beer,  or  other  beverages, 
or  any  article  of  merchandise,  medicines,  compounds,  or 
preparations,  or  for  the  furnishing  of  such  or  similar 
beverages  to  customers,  or  the  buying,  selling,  using,  dis- 
posing of,  or  trafficking  in  of  any  such  bottles,  boxes, 
siphons,  or  kegs,  by  any  person  other  than  said  persons 
or  corporations  having  a  name,  mark,  or  device  thereon, 
or  such  owner  without  such  written  consent,  or  the  having 
by  any  junk  dealer,  or  dealer  in  second-hand  articles,  pos- 
session of  any  such  bottles,  boxes,  siphons,  or  kegs,  a 
description  of  the  marks,  names,  or  devices  wherein  shall 
have  been  so  filed  and  published  as  aforesaid,  without  such 
written  consent,  shall  and  is  hereby  declared  to  be  pre- 
sumptive evidence  of  the  said  unlawful  use,  purchase,  or 
traffic  in  of  such  bottles,  boxes,  siphons,  or  kegs. 


TRADEMARKS.  777 

Sec.  4.  Whenever  any  person,  persons,  or  corporations, 
mentioned  in  section  one  of  this  act,  or  his,  her,  its,  or  their 
agent,  shall  make  oath  before  any  magistrate  that  he,  she, 
or  it  has  reason  to  believe,  and  does  believe,  that  any  of  his, 
her,  or  their  bottles,  boxes,  siphons  or  kegs,  a  description 
of  the  names,  marks,  or  devices  whereon  has  been  so  filed 
and  published,  as  aforesaid,  are  being  unlawfully  used  or 
filled,  or  had  by  any  person  or  corporation  manufacturing 
or  selling  soda,  mineral,  or  aerated  waters,  porter,  ale, 
cider,  ginger  ale,  milk,  cream,  small  beer,  lager  beer, 
weiss  beer,  white  beer,  and  other  beverages,  or  that  any 
junk  dealer,  or  dealer  in  second-hand  articles,  vender  of 
bottles,  or  any  other  person  or  corporation,  has  any  such 
bottles,  boxes,  siphons,  or  kegs,  in  his,  her,  or  its  posses- 
sion, or  secreted  in  any  place,  the  said  magistrate  must 
thereupon  Issue  a  search-warrant  to  discover  and  obtain 
the  same,  and  may  also  cause  to  be  brought  before  him  the 
person  In  whose  possession  such  bottles,  boxes,  siphons, 
or  kegs  may  be  found,  and  then  inquire  into  the  circum- 
stances of  such  possession;  and  if  said  magistrate  finds 
that  such  person  has  been  guilty  of  a  violation  of  section 
two  of  this  act,  he  must  impose  the  punishment  therein 
prescribed,  and  he  shall  also  award  possession  of  the  prop- 
erty taken  upon  such  search-warrant  to  the  owner  thereof. 

Sec.  5.  The  requiring,  taking  or  accepting  of  any  de- 
posit for  any  purpose,  upon  any  bottle,  box,  siphon,  or  keg 
shall  not  be  deemed  or  constitute  a  sale  of  such  property, 
either  optional  or  otherwise,  in  any  proceeding  under  this 
act.  [Amendment  approved  March  5,  1903;  1903,  83.  In 
effect  immediately.] 

Sec.  6.  Any  person  or  persons,  corporation  or  corpora- 
tions, that  has  or  have  heretofore  filed  in  the  offices  men- 
tioned in  section  one  of  this  act  a  description  of  the  name 
or  names,  marks  or  devices,  upon  his,  her,  their,  or  its 
property  therein  mentioned,  and  has  caused  the  same  to 
be  published  according  to  the  laws  existing  at  the  time 
of  such  filing  and  publication,  shall  not  be  required  to 
again  file  and  publish  such  description  to  be  entitled  to 
the  benefits  of  this  act;  and  any  person  or  persons,  cor- 
poration or  corporations,  having  complied  with  the 
provisions  of  this  act  may  as  a  part  of  the  sale,  assign- 
ment or  transfer  of  all  his,  her,  their  or  its  said  bottles. 


778  APPENDIX. 

boxes,  siphons,  or  kegs,  used  as  aforesaid,  with  his,  her, 
their  or  its  name  or  names  or  other  marks  or  devices, 
branded,  stamped,  engraved,  etched,  and  blown,  impressed 
or  otherwise  produced  upon  such  bottles,  boxes,  siphons 
and  kegs,  to  any  other  person  or  persons,  corporation  or 
corporations,  engaged  in  manufacturing,  bottling,  or  selling 
soda  waters,  mineral  or  aerated  waters,  porter,  q,le,  beer, 
cider,  ginger  ale,  milk,  cream,  small  beer,  lager  beer, 
weiss  beer,  white  beer  or  other  beverages,  sell,  assign,  and 
transfer  the  sole  and  exclusive  right  of  using  said  name 
or  names,  marks  and  devices  in  said  business.  And  in  the 
event  of  such  sale,  transfer  or  assignment  as  aforesaid,  or 
in  the  event  of  the  transfer  by  operation  of  law  or  by 
sale  under  order  of  any  court  of  the  entire  business  of  such 
person  or  persons,  corporation  or  corporations,  or  of  the 
entire  stock  of  bottles,  boxes,  siphons  or  kegs  belonging 
to  them,  him,  her  or  it,  to  any  person  or  persons,  corpora- 
tion or  corporations,  engaged  in  manufacturing,  bottling 
or  selling  soda  waters,  mineral  or  aerated  waters,  porter, 
ale,  beer,  cider,  ginger  ale,  milk,  cream,  small  beer,  lager 
beer,  weiss  beer,  white  beer  or  other  beverages,  such  person 
or  persons,  corporation  or  corporations,  shall  not  be  again 
required  to  file  and  publish  a  description  of  said  name 
or  names,  marks  or  devices,  hereunder,  but  shall  be  en- 
titled to  all  the  benefits  of  this  act  immediately  upon  ac- 
quiring such  bottles,  boxes,  siphons  or  kegs  or  such 
business  as  aforesaid.  [Amendment  approved  March  5, 
1903;   1903,  83.     In  effect  immediately.] 

Sec.  7.     All   acts   and   parts   of   acts   inconsistent   here- 
with are,  for  the  purposes  of  this  act,  hereby  repealed. 


UNINCORPORATED    SOCIETIES. 
See  ante,  title  Co-operative  Associations. 


WAREHOUSES    AND    WHARFINGERS. 

An  act  in  relation  to  warehouse  and  wharfinger  receipts, 
and  other  matters  pertaining  thereto. 
[Approved  April  1,  1878;  1877-8,  949.] 

S    1.     Issuance  of  receipts  for  goods. 

§    2.     Issuing  of  receipt  upon  goods  as  security. 

§    3.     Second  receipts.  Issuance  of. 


WAREHOUSES    AND    ;WHARFINGERS.  779 

8  4.  Removal  of  goods  when  receipt  issued. 

§  5.  Receipts  classed. 

§  6.  Receipts  to  be  indorsed. 

§  7.  No  delivery  except  on  order. 

§  8.  Non-negotiable  receipts,  how  marked. 

§  "9.  Loss  by  fire. 

§  10.  Felony. 

Issuance  of  receipt  for  goods. 

Section  1.  That  no  warehouseman,  wharfinger,  or  other 
person  doing  a  storage  business,  shall  issue  any  receipt 
or  voucher  for  any  goods,  wares,  merchandise,  grain,  or 
other  produce  or  commodity,  to  any  person  or  persons  pur- 
porting to  be  the  owner  or  owners  thereof,  unless  such 
goods,  wares,  merchandise,  grain,  or  other  produce  or  com- 
modity, shall  have  been  bona  fide  received  into  store  by 
such  warehouseman,  wharfinger,  or  other  person,  and 
shall  be  in  store  and  under  his  control  at  the  time  of  is- 
suing siich  receipt. 

Issuing    of    receipt    upon    goods    as    security    for    money 
loaned. 

Sec.  2.  That  no  warehouseman,  wharfinger,  or  other 
person  engaged  in  the  storage  business  shall  issue  any 
receipt  or  other  voucher  upon  any  goods,  wares,  merchan- 
dise, grain,  or  other  produce  or  commodity,  to  any  person 
or  persons,  as  security  for  any  money  loaned,  or  other  in- 
debtedness, unless  such  goods,  wares,  merchandise,  grain, 
or  other  produce  or  commodity,  shall  be,  at  the  time  of 
issuing  such  receipt,  the  property  of  such  warehouseman, 
wharfinger,  or  other  person,  shall  be  in  store  and  under 
control  at  the  time  of  issuing  such  receipt  or  voucher  as 
aforesaid. 
Second  receipts  not  to  be  issued,  except,  etc. 

Sec.  3.  That  no  warehouseman,  wharfinger,  or  other 
person  as  aforesaid,  shall  issue  any  second  receipt  for  any 
goods,  wares,  merchandise,  grain,  or  other  produce  or 
commodity,  while  any  former  receipt  for  any  such  goods 
or  chattels  as  aforesaid,  or  any  part  thereof,  shall  be  out- 
standing and  uncanceled. 
Removal  of  goods  when  receipt  is  issued. 

Sec.  4.  That  no  warehouseman,  wharfinger,  or  other 
person  as  aforesaid,  shall  sell  or  incumber,  ship,  transfer, 
or  in  any  manner  remove  beyond  his  immediate  control, 
any  goods,   wares,   merchandise,   grain,   or  other   produce 


7S0  APPENDIX. 

or  commodity  for  which  a  receipt  shall  have  beeu  given  as 
aforesaid,  without  the  written  assent  of  the  person  or  per- 
sons holding  such  receipt  or  receipts  plainly  indorsed 
thereon  in  ink. 

Receipts  classed. 

Sec.  5.  Warehouse  receipts  for  property  stored  shall 
be  of  two  classes:  1.  Transferable  or  negotiable;  and,  2. 
Nontransferable  or  non-negotiable.  Under  the  first  or  these 
classes,  all  property  shall  be  transferable  by  the  indorse- 
ment of  the  party  to  whose  order  such  receipt  may  be 
issued,  and  such  indorsement  of  the  party  shall  be  deemed 
a  valid  transfer  of  the  property  represented  by  such  re- 
ceipt, and  may  be  in  blank  or  to  the  order  of  another. 
All  warehouse  receipts  for  property  stored  shall  distinctly 
state  on  their  face  for  what  they  are  issued,  as  also  the 
brands  and  distinguishing  marks;  and  in  the  -case  of 
grain,  the  number  of  sacks,  and  number  of  pounds,  and 
kind  of  grain;  also  the  rate  of  storage  per  month  or  sea- 
son charged  for  storing  the  same. 
Receipt  to  be  indorsed. 

Sec.  6.  No  warehouseman,  or  other  person  or  persons, 
giving  or  issuing  negotiable  receipts  for  goods,  grain,  or 
other  property  on  storage,  shall  deliver  said  property, 
or  any  part  thereof,  without  indorsing  upon  the  back  of 
said  receipt  or  receipts,  in  ink,  the  amount  and  date  of 
the  deliveries.  Nor  shall  he  or  they  be  allowed  to  make 
any  offset,  claim,  or  demand  other  than  is  expressed  on 
the  face  of  the  receipt  or  receipts  issued  for  the  same, 
when  called  upon  to  deliver  said  goods,  merchandise,  grain, 
or  other  property. 

No  delivery  except  on  order. 

Sec.  7.  No  warehouseman,  ,or  person  or  persons  doing 
a  general  storage  business,  giving  or  issuing  non-negoti- 
able or  nontransferable  receipts  for  goods,  grain,  or  other 
property  on  storage,  shall  deliver  said  property,  or  any 
part  thereof,  except  upon  the  written  order  of  ine  person 
or  persons  to  whom  the  receipt  or  receipts  were  issued. 
Non-negotiable  receipts,   how  marked. 

Sec.  8.  All  receipts  issued  by  any  warehouseman  or 
other  person  under  this  act,  other  than  negotiable,  shall 
have  printed  across  their  face,  in  bold,  distinct  letters, 
in  red  ink,  the  words  "non-negotiable." 


WATER    COMPANIES.  781 

Loss  by  fire. 

Sec.  9.  No  warehouseman,  person  or  persons  doing  a 
general  storage  business,  shall  be  responsible  for  any  loss 
or  damage  to  property  by  fire  while  in  his  or  their  custody, 
provided  reasonable  care  and  vigilance  be  exercised  to  pro- 
tect and  preserve  the  same. 
Felony. 

Sec.  10.  Any  warehouseman,  wharfinger,  person  or  per- 
sons, who  shall  violate  any  of  the  foregoing  provisions  of 
this  act,  is  guilty  of  felony,  shall  be  subject  to  indictment, 
and  upon  conviction,  shall  be  fined  in  a  sum  not  exceeding 
five  thousand  dollars  ($5,000),  or  imprisonment  in  the  state 
prison  of  this  state  not  exceeding  five  years,  or  both.  And 
all  and  every  person  aggrieved  by  the  violation  of  any 
of  the  provisions  of  this  act  may  have  and  maintain  an 
action  against  the  person  or  persons  violating  any  of  the 
foregoing  provisions  of  this  act,  to  recover  all  damages, 
immediate  or  consequent,  which  he  or  they  may  have  sus- 
tained by  reason  of  any  such  violation  as  aforesaid,  before 
any  court  of  competent  jurisdiction,  whether  such  person 
shall  have  been  convicted  under  the  act  or  not. 


WATER    COMPANIES. 
Irrigation:     See  General  Laws,  title  Irrigation. 

An  act  to  regulate  and  control  the  sale,  rental,  and  dis- 
tribution of  appropriated  water  in  this  state,  other 
than  in  any  city,  city  and  county,  or  town  therein, 
and  to  secure  the  rights  of  way  for  the  conveyance  of 
'    such  water  to  the  places  of  use. 

[Approved  March  12,  1885;    1885,  95;    1897,  49;    1901,  80.] 

§    1.  Use  of  appropriated  public  water. 

§    2.  Supervisors  may  fix  rates. 

§    3.  Petition  for  fixing  rates. 

§    4.  Hearing  of  petition — Value  of  waterworks. 

§    5.  Rules  to  be  observed  in  fixing  rates. 

§    6.  Changing  rates. 

§    7.  Record  of  rates  to  be  published. 

§    8.  Water  to  be  furnished  at  rates  fixed. 

§    9.  Penalty  for  excessive  charges. 

§  10.  To  sell  to  all  persons. 

§  11.  Condemning  land  for  right  of  way. 

§  111^.  Contracts  in  existence,  how  affected. 

Use  of  appropriated  water  public. 

Section  1.     The  use  of  all  water  now  appropriated,  or 


782  APPENDIX. 

that  maj'^  hereafter  be  appropriated,  for  irrigation,  sale, 
rental,  or  distribution,  is  a  public  use,  and  the  right  to 
collect  rates  or  compensation  for  use  of  such  water  is  a 
franchise,  and  except  when  so  furnished  to  any  city,  city 
and  county,  or  town,  or  the  inhabitants  thereof,  shall  be 
regulated  and  controlled  in  the  counties  of  this  state  by 
the  several  boards  of  supervisors  thereof,  in  the  manner 
prescribed  in  this  act. 
Supervisors  may  fix  rates. 

Sec.  2.  The  several  boards  of  supervisors  of  this  state, 
on  petition  and  notice  as  provided  in  section  three  of  this 
act,  are  hereby  authorized  and  required  to  fix  and  regu- 
late the  maximum  rates  at  which  any  person,  company, 
association,  or  corporation,  having  or  to  have  appropriated 
water  for  sale,  rental,  or  distribution  in  each  of  such  coun- 
ties, may  and  shall  sell,  rent,  or  distribute  the  same. 
Petition  for  fixing  rates. 

Sec.  3.  Whenever  a  petition  of  not  less  than  twenty- 
five  inhabitants,  who  are  tax-payers  of  any  county  of  this 
state,  shall,  in  writing,  petition  the  board  of  supervisors 
thereof,  to  be  filed  with  the  clerk  of  said  board,  to  regu- 
late and  control  the  rates  and  compensation  to  be  col- 
lected by  any  person,  company,  association,  or  corporation, 
for  the  sale,  I'ental,  or  distribution  of  any  appropriated 
water,  to  any  of  the  inhabitants  of  such  county,  and  shall 
in  such  petition  specify  the  persons,  companies,  associa- 
tions, or  corporations,  or  any  one  or  more  of  them,  whose 
water  rates  are  therein  petitioned  to  be  regulated  or 
controlled,  the  clerk  of  such  board  shall  immediately  cause 
such  petition,  together  with  a  notice  of  the  time  and 
place  of  hearing  thereof,  to  be  published  in  one  or  more 
newspapers  published  in  such  county;  and  if  no  news- 
paper be  published  therein,  then  shall  cause  copies  of 
such  petition  and  notice  to  be  posted  in  not  less  than 
three  public  places  in  such  counties,  and  such  publication 
and  notice  shall  be  for  not  less  than  four  weeks  next  be- 
fore the  hearing  of  said  petition  by  said  board;  such  no- 
tice to  be  attached  to  said  petition  shall  specify  a  day 
of  the  next  regular  term  of  the  session  of  the  said  board 
not  less  than  thirty  days  after  the  first  publication  or 
posting  thereof,   for  the  hearing  of   said   petition,   which 


I 


"WATER     COMPANIES.  733 

shall  impart  notice  to  all  such  persons,  companies,  asso- 
ciations, and  corporations  mentioned  in  such  petition,  and 
all  persons  interested  in  the  matters  of  such  petition  and 
notice.  Such  board  may  also  cause  citations  to  issue  to 
any  person  or  persons  within  such  county  to  attend  and 
give  evidence  at  the  hearing  of  such  petition,  and  may 
compel  such  attendance  by  attachment. 
Hearing  of  petition — Value  of  water-works. 

Sec.  4.  At  the  hearing  of  said  petition  the  board  of 
supervisors  shall  estimate,  as  near  as  may  be,  the  value 
of  the  canals,  ditches,  flumes,  water-chutes,  and  all  other 
property  actually  used  and  useful  to  the  appropriation  and 
furnishing  of  such  water,  belonging  to  and  possessed  by 
each  person,  association,  company,  or  corporation,  whose 
franchise  shall  be  so  regulated  and  controlled;  and  shall 
in  like  manner  estimate  as  to  each  of  such  persons,  com- 
panies, associations,  and  corporations,  their  annual  rea- 
sonable expenses,  including  the  cost  of  repairs,  manage- 
ment, and  operating  such  works;  and,  for  the  purpose  of 
such  ascertainment,  may  require  the  attendance  of  per- 
sons to  give  evidence,  and  the  production  of  papers,  books, 
and  accounts,  and  may  compel  the  attendance  of  such 
persons  and  the  production  of  papers,  books,  and  ac- 
counts, by  attachments,  if  within  their  respective  counties. 
Rules  to  be  observed  in  fixing  rates. 

Sec.  5.  In  the  regulation  and  control  of  such  water 
rates  for  each  of  such  persons,  companies,  associations,  • 
and  corporations,  such  board  of  supervisors  may  establish 
different  rates  at  which  water  may  and  shall  be  sold, 
rented,  or  distributed,  as  the  case  may  be;  and  may  also 
establish  different  rates  and  compensation  for  such  water 
so  to  be  furnished  for  the  several  different  uses,  such  as 
mining,  irrigating,  mechanical,  manufacturing,  and  do- 
mestic, for  which  such  water  shall  be  supplied  to  such 
inhabitants,  but  such  rates  as  to  each  class  shall  be  equal 
and  uniform.  Said  board  of  supervisors,  in  fixing  such 
rates,  shall,  as  near  as  may  be,  so  adjust  them  that  the 
net  annual  receipts  and  profits  thereof  to  the  said  persons, 
companies,  associations,  and  corporations  so  furnishing 
such  water  to  such  inhabitants  shall  be  not  less  than  six 
nor  more  than  eighteen  per  cent  upon  the  said  value  of 
the  canals,  ditches,  flumes,  chutes,  and  all  other  property 


784  APPENDIX. 

actually  used  and  useful  to  the  appropriation  and  furnish- 
ing of  such  water  of  each  of  such  persons,  companies, 
associations,  and  corporations;  but  in  estimating  such  net 
receipts  and  profits,  the  cost  of  any  extensions,  enlarge- 
ments, or  other  permanent  improvements  of  such  water 
rights  or  water-works  shall  not  be  included  as  part  of  the 
said  expenses  of  management,  repairs,  and  operating  of 
such  works,  but  when  accomplished,  may  and  shall  be  in- 
cluded in  the  present  cost  and  cash  value  of  such  work. 
In  fixing  said  rates,  within  the  limits  aforesaid,  at  which 
water  shall  be  so  furnished  as  to  each  of  such  persons, 
companies,  associations,  and  corporations,  each  of  said 
board  of  supervisors  may  likewise  take  into  estimation 
any  and  all  other  facts,  circumstances,  and  conditions  per- 
tinent thereto,  to  the  end  and  purpose  that  said  rates 
shall  be  equal,  reasonable  and  just,  both  to  such  persons, 
companies,  associations,  and  corporations,  and  to  said  in- 
habitants; and  each  such  board  of  supervisors  shall  desig- 
nate what  proportion  of  the  rates  so  fixed  shall  be  for  the 
said  annual  reasonable  expenses  of  each  of  such  persons, 
companies,  associations  or  corporations,  and  what  propor- 
tion of  the  rates  so  fixed  shall  be  for  the  said  net  annual 
receipts  and  profits  to  such  persons,  companies,  associa- 
tions or  coi'porations.  The  said  rates,  when  so  tixed  by 
such  board,  shall  be  binding  and  conclusive  for  not  less 
than  one  year  next  after  their  establishment,  and  until 
established  anew  or  abrogated  by  such  board  of  super- 
Visors,  as  hereinafter  provided.  And  until  such  rates 
shall  be  so  established  or  after  they  shall  have  been 
abrogated  by  such  board  of  supervisors,  as  in  this  act 
provided,  the  actual  rates  established  and  collected  by 
each  of  the  persons,  companies,  associations,  and  corpora- 
tions now  furnishing,  or  that  shall  hereafter  furnish,  ap- 
propriated waters  for  sale,  rental,  or  distribution  to  the 
inhabitants  of  any  of  the  counties  of  this  state,  shall  be 
deemed  and  accepted  as  the  legally  established  rates 
thereof.  [Amendment  approved  February  28,  1901;  Stats. 
1901,  p.  80.] 
Changing  rates. 

Sec.  6.  At  any  time  after  the  establishment  of  such 
water  rates  by  any  board  of  supervisors  of  this  state,  the 
same  may  be  established  anew,  or  abrogated  in  whole  or 


WATER     COMPANIES.  785 

In  part  by  such  board,  to  take  effect  not  less  than  one 
year  next  after  such  first  establishment,  but  subject  to 
said  limitation  of  one  year,  to  take  effect  immediately  in 
the  following  manner:  Upon  the  written  petition  of  in- 
habitants as  hereinbefore  provided,  or  upon  the  written 
petition  of  any  of  the  persons,  companies,  associations  or 
corporations,  the  rates  and  compensations  of  whose  ap- 
propriated waters  have  already  been  fixed  and  regulated, 
and  are  still  subject  to  such  regulation  by  any  board  of 
supervisors  of  this  state,  as  in  this  act  provided;  and 
upon  the  like  publication  or  posting  of  such  petition  and 
notice,  and  for  the  like  period  of  time  as  hereinbefore 
provided,  such  board  of  supervisors  shall  proceed  anew, 
in  the  manner  hereinbefore  provided,  to  fix  and  establish 
the  water  rates  for  such  person,  company,  association, 
or  corporation,  or  any  number  of  them,  in  the  same  manner 
as  if  such  rates  had  not  been  previously  established,  and 
may,  upon  the  petition  of  such  inhabitants,  but  not  other- 
wise, abrogate  any  and  all  existing  rates  theretofore  estab- 
lished by  such  board.  All  water  rates,  when  fixed  and 
established  as  herein  provided  shall  be  in  force  and  effect 
until  established  anew  or  abi'ogated,  as  provided  in  this 
act. 

Record   of  rates   to   be   published. 

Sec.  7.  Each  board  of  supervisors  of  this  state,  when 
fixing  and  establishing,  or  fixing  and  establishing  anew, 
or  abolishing  any  previously  established  water  rates,  as 
hereinbefore  provided,  shall  cause  a  record  to  be  made 
thereof  in  the  records  of  such  board,  and  cause  the  same 
to  be  published  or  posted  in  the  manner  and  for  the 
time  required  for  the  publication  or  posting  of  said  peti- 
tions and  notices. 

Water  to  be  furnished  at  rates  fixed. 

Sec.  8.  Any  and  all  persons,  companies,  associations, 
or  corporations,  furnishing  for  sale,  rental,  or  distribu- 
tion, any  appropriated  waters  to  the  inhabitants  of  any 
county  or  counties  of  this  state  (other  than  to  the  in- 
habitants of  any  city,  city  and  county,  or  town,  therein), 
shall  so  sell,  rent,  or  distribute  such  waters  at  rates  not 
exceeding  the  established  rates  fixed  and  regulated  there- 
for by  the  boards  of  supervisors  of  such  counties,  or  as 


786  APPENDIX. 

fixed  and  established  by  such  person,  company,  association, 
or  corporation,  as  provided  in  this  act. 

Penalty  for  excessive  charges. 

Sec.  9.  If  any  person,  company,  association,  or  cor- 
poration, whose  water  rates  for  any  county  of  this  state 
have  been  fixed  and  regulated  by  a  board  of  supervisors, 
as  in  this  act  provided,  and  while  such  rates  are  in  force, 
shall  collect,  for  any  appropriated  water,  furnished  to  any 
inhabitant  of  such  county  water  rates  in  excess  of  such 
established  rates,  shall  be  liable,  in  an  action  by  any  such 
inhabitant  so  aggrieved,  to  a  recovery  of  the  whole  rate 
so  collected,  together  with  actual  damages  sustained  by 
such  inhabitant,  with  costs  of  suit. 

To  sell  to  all  persons. 

Sec.  10.  Every  person,  company,  association,  and  cor- 
poration, having  in  any  county  in  the  state  (other  than 
in  any  city,  city  and  county,  or  town  therein)  appropriated 
waters  for  sale,  rental,  or  distribution,  to  the  inhabitants 
of  such  county,  upon  demand  therefor,  and  tender  in 
money  of  such  established  water  rates,  shall  be  obliged  to 
sell,  rent,  or  distribute  such  water  to  such  inhabitants 
at  the  established  rates  regulated  and  fixed  therefor,  as 
in  this  act  provided,  whether  so  fixed  by  the  board  of 
supervisors  or  otherwise,  to  the  extent  of  the  actual  sup- 
ply of  such  appropriated  waters  of  such  person,  company, 
association,  or  corporation,  for  such  purposes.  If  any 
person,  company,  association,  or  corporation,  having  water 
for  such  use,  shall  refuse  compliance  with  such  demand, 
or  shall  neglect,  for  the  period  of  five  days  after  such 
demand,  to  comply  therewith  to  the  extent  of  his  or  its  rea- 
sonable ability  so  to  do,  shall  be  liable  in  damages  to  the 
extent  of  the  actual  injury  sustained  by  the  person  or 
party  making  such  demand  and  tender,  to  be  recovered, 
with  costs. 
Condemning  land  for  right  of  way. 

Sec.  11.  Whenever  any  person,  company,  association, 
or  corporation  shall  have  acquired  the  right  to  appro- 
priate water,  or  shall  have  acquired  the  right  to  appro- 
priate such  water  in  this  state,  such  person,  company,  as- 
sociation, or  corporation,  may  proceed  to  condemn  the 
lands  and  premises  necessary  to  such  right  of  way,  under 


WATKR    COMPANIES.  787 

the  provisions  of  title  VII  of  part  III  of  the  Code  of  Civil 
Procedure  of  this  state,  and  amendments  made  and  to  be 
made  thereto,  and  all  the  provisions  of  said  code,  so  far 
as  the  same  can  be  made  applicable,  relating  to  the  con- 
demnation and  taking  of  property  for  public  uses,  shall 
be  applicable  to  the  provisions  of  this  act. 
Contracts  in  existence,  how  affected. 

Sec.  11%.  Nothing  in  this  act  contained  shall  be  con- 
strued to  prohibit  or  invalidate  any  contract  already  made, 
or  which  shall  hereafter  be  made,  by  or  with  any  of  the 
persons,  companies,  associations,  or  corporations  described 
in  section  two  of  this  act,  relating  to  the  sale,  rental,  or 
distribution  of  water,  or  to  the  sale  or  rental  of  ease- 
ments and  servitudes  of  the  right  to  the  flow  and  use  of 
water;  nor  to  prohibit  or  interfere  with  the  vesting  of 
rights  under  any  such  contract.  [New  section,  added 
March  2,  1897;    Stats.  1897,  49.] 

Sec.  12.  This  act  shall  take  effect  and  be  in  force 
from  and  after  its  passage. 

An  act  authorizing  the  boards  of  supervisors  of  the  coun- 
ties in  which  water  is  sold  for  the  purpose  of  irriga- 
tion to  fix  the  rates  at  which  water  shall  be  sold. 
[Approved  March  26,  1880;   1880,  16  (Ban.  ed.  59).] 

§  1.  Supervisors  to  fix  rates. 

§   2.  Forfeiture   of  franchise. 

§  3.  Action  to  enforce  forfeiture. 

§  4.  To   compel   performance  of  duties  of  supervisors. 

§  5.  Control  of  use  of  water  prohibited. 

Supervisors  to  fix  rates. 

Section  1.  ^  The  boards  of  supervisors  of  the  several 
counties  of  this  state  in  which  water  is  appropriated, 
furnished,  and  sold  principally  for  the  purposes  of  irriga- 
tion, are  hereby  authorized  and  required  to  fix  the  max- 
imum rates  at  which  such  water  shall  be  furnished  and 
sold,  at  a  meeting  to  be  held  in  the  month  of  February 
of  each  year;  provided,  that  in  the  year  eighteen  hundred 
and  eighty  sucb  rates  shall  be  fixed  at  the  first  meeting 
after  the  passage  of  this  act.  The  rates  so  fixed  and  estab- 
lished shall  be  in  force  from  and  after  the  first  day  of 
July,  after  the  date  of  fixing  said  rates,  and  shall  con- 
tinue in  force  for  the  period  of  one  year;   provided,  that 


7SS  APPENDIX. 

nothing  in  this  section  shall  apply  to  water  furnished 
within  the  limits  of  any  incorporated  city  and  county, 
city,  or  town. 

Forfeiture  of  franchise. 

Sec.  2.  Any  person,  company,  or  corporation  collecting 
rates  for  water  furnished  for  irrigation  in  any  county  in 
this  state  in  excess  of  the  rates  as  provided  in  section  one 
of  this  act  shall  forfeit  for  the  public  use  the  franchise 
and  water-works  of  such  person,  company,  or  corporation 
to  the  county  in  which  such  excessive  rates  were  charged. 

Action  to  enforce  forfeiture. 

Sec.  3.  Upon  aflidavit  being  made  by  any  interested 
party,  setting  forth  that  any  such  company,  person,  or 
corporation  has  charged  rates  for  water  furnished  for  irri- 
gating purposes  in  excess  of  the  rates  established  by  the 
board  of  supervisors,  the  said  board  of  supervisors  shall 
cause  the  district  attorney  to  commence  an  action  in  the 
superior  court  of  the  county,  within  thirty  days  from  the 
receipt  by  them  of  such  affidavit,  to  enforce  the  forfeiture 
of  the  franchise  and  water-works  of  such  person,  company, 
or  corporation. 

To  conapel  the  performance  of  the  duties  of  supervisors. 

Sec.  4.  If  the  board  of  supervisors  fail  or  neglect  to  fix 
the  rates,  as  provided  in  section  one  of  this  act,  or  if  the 
board  of  supervisors  fail  or  neglect  to  commence  the  action 
provided  for  in  section  three  of  this  act,  as  therein  pro- 
vided, any  interested  person  may  commence  proceedings 
to  compel  the  performance  of  such  duties. 

Control  of  use  of  water  prohibited. 

Sec.  5.  No  person,  company,  or  corporation  selling 
water  for  irrigation  shall  be  permitted  to  exercise  any 
control  as  to  the  use  of  the  water  after  its  delivei-y  to  the 
purchaser. 

Sec.  6.     This  act  shall  take  effect  immediately. 

Compare  the  act  of  1885,  95,  amended  1897,  49;  1901,  80, 
to  regulate  and  control  sale,  rental,  distribution,  etc.,  of 
water,  set  forth  in  full,  ante. 


INDEX. 


ABANDONMENT,  child  abandoned,  adoption  of,  §  224. 

Child,  by  father,  custody  on,  §  197. 

Child,  of,  what  deemed  to  be,  §  224. 

Child,  parent  presumed  to  relinquish  on,  §  211. 

Homestead,  abandoned  how,   §§   1243,  1244. 

Husband,  of,  by  wife,  support,   §  175. 

Marine  insurance,  in,  §§  2716-2732. 

Notice  not  necessary  on  actual  total  loss,  §  2709. 

Parent  by  child,  parent  not  liable  for  support,  §  208. 

Shipmaster's  authority  terminated  by,  §  2381. 

Ship,  of,   by  master,   §§   2040,  2041. 

Thing  abandoned  voluntarily,  §  1872. 

Water,  of  appropriation  of,  §  1411. 
ABATEMENT,  legacies,  of,  §  1362. 

Nuisance,  of,  §§  3484-3503. 
ABDUCTION,  in  general,  §  49. 
ACCEPTANCE,  accord  of,  §  1523. 

Benefit  of  transaction,  of,  §  1589. 

Of  guaranty,  notice  when  necessary,  §  2795. 

Of  principal,  waives  interest,  when,  §  3290. 

Of  rent,  renews  lea^e,  when,   §  1945. 

Partial  performance,  of,  §  1741. 

See  Contract;  Negotiable  Instrument,  etc. 
ACCESSION,  increase  of  thing  belongs  to  hirer,  §  1926. 

Ownership  of,   §§   732,  1025. 

Personalty,    to,    by    uniting    several    different    things, 
§  1025. 

Personalty,  to,  increase  of  thing  pledged,  §  2989. 

Personalty,  to,  inseparable  materials,  §  1029. 

Personaltj',  to,  materials  of  several  owners,  §  1030. 

Personalty,  to,  owner  may  elect  between  thing  and  its 
value,  §  1032. 

Personalty,  to,  principal  part  is  what,  §§  1026,  1027. 

Personalty,    to,    uniting   materials    and    workmanship, 
§  1028. 

Personalty,  to,  willful  trespassers,   §  1031. 

Personalty,  to,  wrongdoer  liable  in  damages,  §  1033. 


790  ACCESSION— ACCUMULATIONS. 

Products  of  thing  belong  to  hirer,  §  1926. 

Property  may  be  acquired  by,  §  1000. 

Realty,  to,  alluvion,   §   1014. 

Realty,  to,  avulsion,  §  1015. 

Realty,  to,  fixtures,  §  1013. 

Realty,  to,  fixtures  removable  by  tenant,  §  1019. 

Realty,  island  formed  by  division  of  stream,  §  1018. 

Realty,  to,  island  in  navigable  stream,  §  1016. 

Realty,  to,  island  in  unnavigable  stream,  §  1017. 

Realty,  to,  islands,  §§  1016-1018. 

Realty,  to,  sudden  removal  of  bank,  §  1015. 
ACCESSORY,  lien  is,  §  2909. 

Transfer  of  principal  thing  passes,  §§  1084,  3540. 
ACCIDENT,  deposit  by,  to  be  accepted,  §  1816. 

Disregarding  erroneous  parts  of  writing,  §  1640. 

Trust  arising  from,  §  2224. 

See  Mistake. 
ACCIDENT  INSURANCE:     See  Insurance. 
ACCORD  AND  SATISFACTION.    Acceptance  of  considera- 
tion extinguishes  obligation,  §  1523. 

Accord  defined,  §  1521. 

Accord,  effect  of,  §  1522. 

Satisfaction  defined,  §  1523. 

Satisfaction,  part  performance  in,  §  1524. 
ACCOUNT,    assignee    for    creditors    may    be    required   to, 
§  3469. 

Employee's  duty  to,  §§  1986,  2014. 

Of  voluntary  interferer  with  property,  §  2078. 

Partner  must,  for  profits  of  adverse  business,  §  2438. 

Partner's  mutual  liability  to,  §  2412. 

Servant,  by,  g§  2014,  1986. 

Trustee,   requiring  to,    §    2237. 
ACCRETION:      See  Accession. 

ACCUMULATIONS.     Directions  for  longer  term  than  mi- 
nority, effect  of,  §  725. 

Directions  for,  to  be  for  benefit  of  minors  in  being, 
§  724. 

Directions  for,  when  void  in  part,  §  725. 

Directions  for,  void  unless  allowed  by  code,  §  723. 

Express  trust  to  accumulate  rents  and  profits,  §  857. 

Income,    dispositions    of,    code    provisions    governing, 
§  722. 


ACCUMULATIONS — ACKNOWLEDGMENTS.  791 

Incomo  when  directed  to  suppoi't  of  minor,  §  726. 

Time  of  commencement  of,  and  termination  of,  §  724. 
ACKNOWLEDGMENTS,  act  curing  defects  in,  §  1207. 

Action  to  secure,  §  1203. 

Apprenticeship  contract,  §  275. 

Articles  of  incorporation,  §  292. 

Assignment  for  creditors,  §§  3458,  3459. 

Certificate  of,  by  attorney  in  fact,  form  of,  §  1192. 

Certificate  of,  defective,  action  to  correct,  §  1202. 

Certificate  to  be  indorsed  on,  §  1188. 

Contempt,  officer  taking,  may  punish  for,  §  1201. 

Conveyances  made  before  code,  §§  1205,  1206. 

Corporation,  acknowledgment  of  instrument  executed 
by,  §  1161. 

Corporation,  form  of  acknowledgment  by,  §  1190. 

Corporation,  prerequisites  to  taking,  §  1185. 

Correcting  defective  certificate  of,  action  for,  §  1202. 

Correction  of,  acts  legalizing  defective  acknowledg- 
ments, p.  665. 

Declaration  of  marriage,   §§   77,  79 1/^. 

Deputy  may  take,   §   1184. 

Foreign,  certificate  of  clerk  to,  §  1189. 

Foreign,  form  of,  §  1189. 

Foreign,  who  may  take,  §§  1182,  1183. 

Form  of  certificate  of,  by  attorney  in  fact,  §  1192. 

Form  of,  foreign,    §  1189. 

Form  of,  general,  §  1189. 

Homestead  conveyance  or  incumbrance,  §  1242. 

Homestead,  of  declaration  of  abandonment,  §  1243. 

Homestead  selection,   §§   1262,  1266. 

Illegitimate  child,  acknowledgment  of,  §  1387. 

Indorsement  of  certificate  on,  §  1188. 

Inventory  of  wife's  property,   §  165. 

Justice  of  peace,  certificate  of,  authority  of,  §  1194. 

Marriage,  declaration  of,   §   77. 

Marriage  settlement,  §§  178-180. 

Married  woman's  conveyance,  §  1187. 

Married  woman's   deed,   §   1093. 

Married  woman's  power  of  attorney,  §  1094. 

Mortgages,  acknowledgment  of,  §  2952. 

Oaths,  officer  taking,  may  administer,  §  1201. 

Officers  taking,  have  what  authority,  §  1201. 


792  ACKNOWLEDGMENTS— ADOPTION. 

Partnership,  certificate  of,  §  2480. 

Power  of  attorney  and  revocation  thereof,  §  1216. 

Prerequisites  to  taking,  §  1185. 

Proof  of  execution  of  instruments  not  acknowledged, 
§  1195. 

Proof  of  instrument,  action  and  judgment  for,  §§  1203, 
1204. 

Recorded  without,  what  instruments  cannot  be,  §  1161. 

Recorded  without,  what  instruments  may  be,  §§  1159, 
1160. 

Requisites  for,  §  1185. 

Seals,  when  officers  must  affix,  §  1193. 

Signatures,  officers  must  affix,  §  1193. 

Subpoenas,    officer    taking,    may    issue,    §    1201. 

What    law     governs     where     executed     before    code, 
§§   1205,  1206. 

Who  may  take,  §§  1180-1184. 

Who  may  take  without  the  state,  §  1182. 

Who  may  take  without  the  United  States,  §  1183. 

Wine  sale,  of,  §  3440. 
ACQUIESCENCE   removes  objections,    §   3510. 
ACTION.     Action  lies  to  obtain  judgment  proving  instru- 
ment, §  1203. 

Pending,  not  affected  by  code,  §  6. 

See   subject  in   question. 
ACT  OF  GOD,  carrier's  liability  relieved  by,  §  2194. 

Performance  of  obligation  excused  by,  §  1511. 
ADEMPTION,  advancement  or  gift,  when  only  an,  §  1351. 
ADJOURNMENT,  corporate  election,  §  314. 

Corporate  meeting,  §  312. 
ADMINISTRATOR:     See  Executor  and  Administrator. 
ADMIRALTY:      See  Shipping. 

ADOPTION.      Abandoned    child,    consent    not    necessary, 
§  224. 

Abandonment  of  child,  what  deemed  to  be,  §  224. 

Adopting  parent  to  be  ten  years  older,  §  222. 

Any  minor  child  may  be  adopted,  §  221. 

Consent,  abandonment  of  child,  not  necessary,   §  224. 

Consent,  abandonment  of  child,   what  deemed  to   be, 
§  224. 

Consent,  necessity  of,  §  224. 


ADOPTION — AFFIDAVIT.  793 

Consent  of  child  over  twelve  necessary,  §  225. 

Consent  of  husband  or  wife,  §  223. 

Consent  of  mother  of  illegitimate,  §  224. 

Consent  of  nonresidents,  §§  224,  226. 

Consent  of  parents,   §   224. 

Consent  of  parents,  when  not  required,  §  224. 

Contract  of,  how  entered  into,  §§  226,  227. 

Effect  of,  rights  and  duties  of  parties,  §§  227,  228. 

Effect  on  parents  of  child,  §  229. 

Illegitimate  child,  adoption  of,  §  230. 

In  general,   §  221. 

Name,  family,  adopted  child  may  take,  §  228. 

Nonresidents,   consent  of,    §   226. 

One   spouse   cannot  adopt   without   consent   of   other, 
§   223. 

Order  of,  §  227. 

Orphan   asylum,   from,    §    224. 

Petition  for,  §  226. 

Proceedings  on,  §§  226,  227. 

Who  may  adopt,  §§  221,  222. 
ADULT,  who  is  an,  §  27. 

Compensation  for  support  of  adult  child,  §  210. 
ADULTERY  defined,  .§  93. 

Divorce,  as  ground  for,  §  92. 
ADVANCEMENT,  child,  to,  effect  of,  §  1309. 

Death  of  heir  advanced  to  before  decedent,  §  1399. 

Less  or  greater  than  share,  effect  of,  §  1396. 

Must  be  taken  toward  share  in  intestate's  property, 
§  1395. 

Valuation  of  by  decedent  binding,  §  1398. 

Value  of,  determined  how,  §  1398. 

What  are,   §  1397. 

When  only  deemed  ademption,  §  1351. 

When  too  much,  or  too  little,  §  1396. 
ADVERSE   POSSESSION  confers  title,  §  1007. 

In  general,  §  1007.  , 

Owner  of  property  in,  may  transfer,  §  1047. 

Property  adversely  held  may  be  mortgaged,  §  2921. 
AFFIDAVIT,  as  to  sums  contributed  by  special  partners, 
§  2481. 

Assignment  for  creditors,  truth  of  inventory,   §   3462. 

Civ.   Code — 34 


794  AFFIDAVIT — AGENCY. 

Corporation,  on  filing  articles  of,  §  295. 

Mining  claims,   showing   work   or   posting  notices   on 

may  be  recorded,  §  1159. 
Partnership,   fictitious   name,   affidavit   of  publication, 

§  2471. 
Partnership,  of  notice  of  special,  §  2484. 
Publication  of  notice  of  assessment,  affidavits  of,  §  348. 
Stock,  of  publication  of  notice  for  sale  of  delinquent, 

§  348. 
Subscription  to  stock,  and  payment  of  ten  per  cent, 

affidavit  as  to,  §  295. 
Transfer  of  stock  by  non-resident,  affidavit  on,  §  326. 

AFFIRMATIONS,   officer   authorized   to   take   proof   of   in- 
strument may  administer,   §   1201. 

AFTER-ACQUIRED  PROPERTY,  passes  by  will,  §  1312. 

AFTER-ACQUIRED   TITLE,  conveyance  passes,   §   1106. 
Inures  to  mortgagee,  §  2930. 

AGE,  majority,  age  of.     See  Majority. 

AGENCY,  acts  that  may  be  done  through  agent,  §§  2304, 
2305. 

Actual  authority  defined,  §§  2316,  2318, 

Actual  authority  of  factor,   §  236S. 

Actual  authority,  agent  not  to  exceed,  §  2019. 

Actual  authority,  extent  of,   §   2318. 

Actual,  defined,  §  2299. 

Actual  or  ostensible,  agency  is,  §  2298. 
.   Agent,  any  one  may  appoint,  having  capacity  to  con- 
tract,  §  2296. 

Agent,  defined,  §  2295. 

Agent  must  keep  principal  informed,  §  2020. 

Agent  not  having  authority  to  contract,  §  2345. 

Agent  not  to  act  in  own  name,  §  2322. 

Agent,  rights  of  person  dealing  with,  without  knowl- 
edge of  agency,  §  2336. 

Agent's  liability  to  third  persons,  §  2343. 
'      Agent's  obligation  to  surrender  property  to  third  per- 
son, §  2344. 

Agent  to  conform  to  authority,  §  2019. 

Agent  under  legal   disability,    §   2345. 

Agent  warrants  his  authority,  §  2342. 


AGENCY.  795 

Agent,  who  may  be,  §  2296. 

All  rights  and  liabilities  accruing  to  agent  accrue  to 
principal,  §  2331. 

Attorney  in  fact,  conveyances  by,  how  executed,  § 
1095. 

Auctioneers:      See  Auctions. 

Authority,  acts  within  actual  or  ostensible  bind,  § 
2330. 

Authority,  agent  cannot  have  to  defraud  principal,  § 
2306. 

Authority,  agent's  necessary,  §  2319. 

Authority,  agent  warrants  his,   §   2342. 

Authority,  construction  of  what  partly  general  and 
partly  specific,  §  2321. 

Authority  construed  by  its  specific  terms,  not  by  gen- 
eral,   §    2321. 

Authority,  damages  for  breach  of  warranty  of,  §  3318. 

Authority,  exceptions  to  a  general,  §  2322. 

Authority,  how  may  be  conferred,   §   2307. 

Authority,  incomplete  execution  of  binds  principal, 
when,  §  2331. 

Authority,  instrument  intended  to  bind  principal  does 
bind  him,   §   2337. 

Authority  of  agent  as  to  persons  with  notice  of  re- 
strictions on,  §  2318. 

Authority  of  agent,  implied,   §   2319. 

Authority  of  agent,  measure  of,  §§  2315,  2318. 

Authority,  oral  authorization,  sufficiency  of,  §  2309. 

Authority,   representations,  power  to  make,   §   2319. 

Authority,  scope  of,  agent  not  to  define,  §  2322. 

Authority,  termination  where  power  coupled  with  in- 
terest, §  2356. 

Authority  to  sell  includes  authority  to  covenant, 
§   2324. 

Authority  to  sell  includes  authority  to  warrant,  §§ 
2323,  2324. 

Authority  that  may  be  delegated  to  agent,  §§  2304, 
2305. 

Authority  to   disobey  instructions,    §    2320. 

Authority  to  receive  price,  §§  2325,  2326. 

Authority,  what  terminates,  §§  2355,  2356. 

Authority,  when  to  be  conferred  in  writing,  §  2309. 


796  AGENCY. 

Authority,   whether   principal   bound   when   agent   ex- 
ceeds,  §  2333. 
Code  provisions  governing,  subject  to  what  limitations, 

§   2345. 
Collecting  agent's  duty,  §  2021. 
Consideration  unnecessary,  §  2308. 
Covenants,  agent  may  give,  §  2324. 
Created  by  ratification,   §  2307. 
Created  how,  §  2307. 

Credit,   agent's   liability   respecting,    §    2343. 
Credit,  effect  of  giving  exclusive,  to  agent,  §  2335. 
Damages  for  breach  of  warranty  of  agent's  authority, 

§  3318. 
Death  of  agent  terminates,  §  2355. 
Death  of  principal  terminates,   §  2356. 
Defined,   §  2295. 

Delegate  powers,   when  agent  may,   §   2349. 
Delegation  of,  §§  2349-2351. 
Delegation,    sub-agent    rightfully    appointed,    original 

agent  not  liable  for,  §  2351. 
Delegation,  sub-agent  rightfully  appointed  represents 

agent,  §  2351. 
Delegation,  unlawful  employment  of  sub-agent,  effect 

of,   §   2350. 
Delivery  of  contract  to  agent,  §  1626. 
Expiration  of  term  terminates,  §  2355. 
Extinction  of  subject  of,  terminates,   §   2355. 
Factors:      See  Factors. 

Fraud,  agent  no  authority  to  defraud  principal,  §  2306. 
General  agent  defined,   §   2297. 
General   agent   to   sell,   authority   to   receive   price,    § 

2325.  . 
General    authority,    does    not    include    what    acts,    § 

2322. 
General  authority,  exceptions  to,   §   2322. 
Incapacity  of  parties  terminates,   §§  2355,  2356. 
Indemnity,  agreement  of,  covers  acts  of  agent,  §  2775. 
Instructions,  agent's  power  to  disobey,  §  2320. 
Instrument  intended  to  bind  principal  does  bind  him, 

§   2337. 
Insurance  by  agent,  form  of  policy,  §  2589. 
Manager  of  ship  general  agent  for  owners,  §  2070. 


AGENCY.  797 

Married  woman's  power  of  attorney,  §  1094. 

Measure  of  agent's  authority,  §§  2315,  2318. 

Minor  cannot  delegate  power,  §  33. 

Mortgage,  power  of  attorney  to  execute,  how  executed, 
§  2933. 

Negligence  of  agent,  liability  of  principal,  §  2338. 

Notice  of  dishonor  by  agent,  §  3149. 

Notice  to  agent,  when  notice  to  principal,  §  2332. 

Notice  to  principal,  agent  has  notice  of,  §  2332. 

Omissions  by  agent,  principal  liable  for,  §  2338. 

Oral  authorization,  sufficiency  of,   §   2309. 

Ostensible,  agency,  when  is,  §  2300. 

Ostensible  authority  defined,   §§  2317,  2318. 

Ostensible  authority,  extent  of,  §  2318. 

Ostensible  authority  of,   §  2315. 

Ostensible  authority  of  factor,  §  2369. 

Ostensible  authority,  principal  not  liable  for  acts 
acts  under,   when,   §   2334. 

Ostensible,  defined,  §  2300. 

Ostensible  or  actual,  §  2298. 

Partners'  liability  for  each  other,  §  2429, 

Partner  liable  as  agent,  §  2443. 

Payment  to  agent,  when  exonerates,   §   2335. 

Power  of  attorney  to  gratuitous  employee,  §  1977. 

Price,  authority  to  receive,  §§  2325,  2326. 

Principal  bound  by  instrument  intended  to  bind  him, 
§   2337. 

Principal,  how  effected  by  agent's  acts  within  his 
authority,  §  2330. 

Principal,  when  bound  by  incomplete  execution  of 
authority,   §  2331. 

Principal,  whether  bound  when  agent  exceeds  au- 
thority,   §   2333. 

Principal,  who  may  be,  §  2296. 

Ratification,  creation  of,  by,  §  2307. 

Ratification  not  to  injure  third  persons,  §  2313. 

Ratification  of  agency,    §   2307. 

Ratification  of  agent's  act,  how  may  be  made,  §  2310. 

Ratification  of  part  of  transaction,  §  2311. 

Ratification,  rescission  of,  §  2314. 

Ratification,  void,  when,  §  2312. 

Real  estate  agent  may  give  covenant,   §   2324. 


798        AGENCY — AGRICULTURAL   FAIR   CORPORATIONS. 

Real  estate  broker,  statute  of  frauds,  §  1624. 

Renunciation  of  agency,  terminates,   §   2355. 

Representations,  power  of  agent  to  make,  §  2319. 

Rescission  of  ratification,  §  2314. 

Revocation  by  principal  terminates,   §  2356. 

Rights  of  person  dealing  with,  agent  without  notice  ot 
agency,   §   2336. 

Scope  of,  agent  not  to  define,  §  2322. 

Setoff    against    claim    of    principal    by    third    person, 
§  2336. 

Shipmaster  as  agent,  §§  2373-2385. 

Shipmaster's  authority  as  agent,   §   2044. 

Ship's  manager  as  agent,  §§  2388,  2389. 

Special  agent  defined,   §   2297. 

Special  agent  to  sell,  authority  to  receive  price,  §  2326. 

Special  or  general,   §   2297. 

Statute  of  frauds,  §§  1624,  2309. 

Subagent,    effect   of    unauthorized    appointment   of,    § 
2350. 

Subagent,  liability  of,  §   2022. 

Subagent  represents  principal,  §  2351. 

Terminated  by  what,  §§  2355,  2356. 

Termination  of,  power  coupled  with  interest,   §  2356. 

Third  person,  agent's  obligation  to  surrender  property 
to,   §   2344. 

Third  persons,  agent's  responsibility  to,   §  2343. 

Torts,  agent's  liability  for,  to  third  persons,  §  2343, 

Torts  of  agent,  liability  of  principal,  §§  2338,  2339. 

Trustee's  powers  as  agent,   §   2267. 

Warrant,   authority   to,   included   in   power   to   sell,    § 
2323. 
AGISTOR'S   LIEN,    §   3051. 
AGRICULTURAL  FAIR  CORPORATIONS,   §§     620,  622. 

Debts  contracted  illegally,  directors  liable  for,   §   621. 

Debts  not  to  be  contracted  beyond  amount  in  treas- 
ury except  for  realty,  §  621. 

Debts,  power  to  create  for  realty,  §  621. 

Fees,  limitation  upon  amount  of,  §  622. 

Fees  to  be  provided  in  by-laws,  §  622. 

Have  no  capital  stock,  §  622. 

Not  conducted  for  profit,  §   622. 


AGRICULTURAL  FAIR  CORPORATIONS — ALTERATION.      799 

Real  estate,  for  what  purposes  to  be  held,  §  620. 
Real  estate,  how  much  may  be  purchased,  leased  or 

sold  by,  §  620. 
AIR,  easement  of,  §  801. 
ALIEN,  apprenticeship  of,  §  274. 
Inheritance  by,  §§  672,  1404. 
May  take,  hold  and  dispose  of  realty  and  personalty, 

§  671. 
Must  appear  and  claim  property  within  five  years,  § 

672. 
Non-resident,  failure  to  claim  estate,  proceedings  in 

case  of,   §§  1405,  1406. 
Non-resident,   property    escheats    subject   to   charges, 

§  1407. 
Non-resident,  interest  in  estate  escheats,  when,  §  1406. 
Non-resident,  taking  by  succession,  within  what  time 

to  make  claim,  §  1404. 
Property  rights  of,  §  672. 
ALIENATION:     See  Conveyance. 

Condition  restraining,  effect  of,  §  711. 

Future  interest,  suspending  power  of,  void,  §  716. 

Limitation    on    power    of    suspension    in    estates    for 

years,   §  770. 
May  be  suspended  how  long,  §  715. 
Of  chattel  real,  suspending,   §  770. 
Power  of,  how  long  may  be  suspended,  §  715. 
Power  of,  when  suspended,  §  716. 
Suspension  of  power  of  by  trust,  §  771. 
Who  entitled  to  income  where  no  disposition  of  it, 

§  733. 
ALIMONY:      See  Divorce. 
ALLUVION  defined,   §  1014. 

See  Accession. 
Ownership  of,  §  1014. 

ALTERATION   and  cancellation  of  contracts  in  general, 

§§   1697-1701. 
Duplicate,  alteration  of,  effect  of,  §  1701. 
Duplicate,  of,  §  1701. 
Guarantor  exonerated  by,   §   2821. 
Insurance,  alteration  of  representation,   §   2576. 
Insurance,  fire,  effect  of  alteration  in,  §§  2753,  2754. 


800  ALTERATION— APPEAL. 

Material,   extinction  of  contract  by,   §   1700. 
Verbal,   considei'ation   not  necessary,   §   1697. 
Verbal  contract  may  be  altered  by  consent,  §  1697. 
Verbal,  extinguished  by,  §  1697. 
Written,   how   altered,    §    1698. 
ALTERNATIVE,  future  interest  in  the,   §   696. 

Obligations,  §§  1448-1451. 
AMBIGUITY,  wills,  in,  construction,  §   1323. 
AMENDMENT,  articles  or  certificate  of  incorporation,  of, 

§  362. 
ANIMALS,  action  for  injuries  by  dog,  knowledge  of  char- 
acter of  dog  need  not  be  shown,  §  3341. 
Care  required  of  borrower,   §  1887. 
Combinations  to  obstruct  sales  of  livestock  prevented, 

p.  666,  Stats. 
Damages  for  injuries  to,  §  3340. 

Depositary,  compensation  of  for  parts  of  week,  §  1853. 
Depositary  of,  duties  of,   §  1834. 
Dog  killing  goats,  sheep  or  poultry,  liability  of  owner, 

§    3341. 
Dog  injuring  sheep  or  goats  may  be  killed,  §  3341. 
Dogs,  protection  of  goats,  sheep  and  poultry,   §   3341. 
Domestic,  subject  of  ownership,   §   655. 
Game,  right  to  take  game  and  fish,  §  802. 
Killing  or  injuring  goats  by  dogs,  damages  for,  §  3341. 
Killing  sheep  by  dogs,  damages,  §  3341. 
Lien  for  keeping,   §  3051. 
Lien  in  favor  of  owners  of  bulls,  jacks  and  stallions 

used  for  propogation,  p.  738,  Stats. 
Poultry,  liability  of  owner  of  dog  killing,  §  3341. 
There  may  be  ownership  of,  §  655. 
Wild,   property  in,    §   656. 
ANNUITY,  commences  when,  §  1368. 
Defined,  §  1357. 

Effect  of  failure  of  fund,  §  1357. 
Failure  of  fund,  resort  to  other  property,  §  1357. 
ANNULMENT  of  Indenture  of  apprenticeship,    §   276. 

Of  marriage:      See  Marriage. 
APPEAL,  divorce,  revision  of  order  disposing  of  property, 

§  148. 
Order    relating    to    property    on    divorce,    subject    to, 

§  147. 


APPLICATION — APPRENTICESHIP.  801 

APPLICATION   of  interest,    §   1479. 

Of  money  transferred  to  trustee,  wtien  one  must  see 

to,  §  2244. 
Of  performance,  §  1479. 
Of  performance,   rescission  of,   §   1479. 
Of  performance,  where  several  obligations,  §  1479. 
Termination  of  hiring  before  time,  apportionment  of 

hire,   §  1935. 
APPOINTMENT,  effect  of  power  of,  §  781. 

No  person  guardian  of  estate  without,  §  242, 

Of  guardian  by  the  court,  §§  243,  244. 

Of  guardian  by  the  court  supersedes  parent,  §  204. 

Of  trustee,  how  made;  §  2287. 

Of  successor  to  trustee,   duty  of  trustee   concerning, 

§  2260. 

APPORTIONMENT  of  burden  of  servitude  on  partition  of 
dominant  tenement,   §  807. 

Of  consideration  in  case  of  prevention  of  performance, 
§  1514. 

Of  covenants,   §   1467. 

Of  freightage,   according   to   distance,    §    2142. 

Of  freightage,  by  contract,  §§  2140,  2141. 

Of  hire,  §  1935. 

Of  lien,  §   2912. 

Of  losses  occasioned  by  collision  of  vessels,  §  973. 
APPRAISEMENT  of  homestead,  §§  1245-1258. 

Of  property  found,  §  1865. 

APPRENTICESHIP,    acknowledged,    contract    must    be,  § 
275. 
Acknowledgment,   certificate   showing  it   to   be   freely 

made  on  private  examination,   §  275. 
Act  relative  to  apprentices,  p.  668. 
Age,   indentures,   age   inserted    in   taken   to    be   true, 

§   270. 
Age,    public    officer    binding    out    to    inquire    into    in- 
fant's,  §   270. 
Age  to  be  inserted  in  indentures,   §   270. 
Alien,  contract  of,  limitation  upon  term  of,  §  274. 
Alien,   contract   of   may   extend   beyond   term   of  ma- 
jority,  when.    §    274. 
Alien  may  bind  himself  to,  $  274. 


802  APPllENTICESHIP — ASSIGNMENT.  • 

Annulment  of  contract,  grounds  for,   §   276. 
Annulment    of    contract,     recovery    for    services   on, 

§    276. 
Contract  of,  any  minor  may  make,  §  264. 
Contract  of,  duration  of,   §   2G4. 
Contract   of,    effect    of,    §    264. 
Consent    to,    how    signified,    §    266. 
Consent   to,    who   to   give,    §    265. 
Education  of  child,   indenture   to   contain   agreement 

for,    §    272. 
Executors,  power  of  to  bind  child  to,   §   267. 
Indenture   executed  by   public  officer,  copy  to  be   de- 
posited  with   county,  clerk,    §    273. 
Indentures,  money  paid  or  agreed  for  to  be  inserted 

in,    §    271. 
Public  officers,  power  of  to  bind  to,  §  269. 
Supervisors,   power  to  bind   minor  to,   §   268. 
APPURTENANCE    deemed   fixture,   when,    §    661. 
Definition    of,    §    662. 
Incidents,  transfer  of,  does  not  pass  principal  thing, 

§   1084. 
Irrigation  stock  appurtenant  to  land,   §   324. 
Irrigation  stock  appurtenant  to  land,  how  sold,  §  324. 
Land,  to,  what     deemed  to  be,   §  662. 
Pass  by  transfer  of  land,   §§   476,  1084,  3540. 
Ship  to,  §  961. 
ARBITRATION,  partner  may  not  submit  to,  §  2430. 

Specific  performance  of  agreement  for,  not,  §  3390. 
ASSESSMENTS:      See    Corporations. 

Covenant  for  payment  of  runs  with  land,  §  1463. 
ASSIGNMENT,  action  against  street  railway  for  penalty 

for   overcharging,    of,    §    504. 
By  lessor,  liability  of  assignee,  §  822. 
Chose  in  action,  of,  §  954. 
Debt  secured  by  mortgage,  of,   §   2936. 
Employees  of  corporation,  act  relating  to  assignments 

of  wages  by,  p.  700. 
General,  to  indorser  excuses  notice  of  dishonor,  §  3157. 
Life    insurance    policy,    of,    §    2764. 
Literary  property  is  assignable,   §  982. 
May   be   oral,    when,    §    1052. 
Mere   possibility   cannot   be    transferred,    §    1045. 


ASSIGNMENT — ASSIGNMENT    FOR    CREDITORS.  803 

Mortgage,    record    of     assignment     of,    as     notice,    §§ 

2934,    2935. 
Non-negotiable  contract  may  pass  by,  §  1459. 
Partner  may  not  make,   §  2430. 
Power  to   sell   in  incumbrance  passes   to  assignee,   § 

858. 
Products  of  the  mind,  of,  §   980. 
Warranty    of   written    instrument    sold,    §    1774. 
See   Transfer. 

ASSIGNMENT  FOR  CREDITORS,  accounting  by  assignee, 
§    3469. 

Acknowledging,    §§    3458,    3459. 

Affidavit    by    assignor,    §    3462. 

Affidavit  by  assignor,  effect  of  refusal  to  make,  §  3462. 

Alteration  of,  consent  of  parties  necessary,  §  3473. 

Assignee,    allowance   of   expenses,    §    3471. 

Assignee  may  be  elected  in  place  of  sheriff,   §   3449. 

Assignee   not  liable  when   void,    §   3472. 

Assignee   not   purchaser   for   value,    §   3460. 

Assignee,   powers   of,    §    3449. 

Assignee's  compensation,  §   3471. 

Assignee  takes  subject  to  rights  of  "third  parties,  S 
3460. 

Assignee,  transfer  to,  by  sheriff,   §  3449. 

Assignee  without  authority  until  inventory  and  bond 
filed,    §    3468. 

Assignment,   what   to   contain,    §   3449. 

Bond   of   assignee,    §    3467. 

Bond  of  assignee  to  be  filed  before  authority  com- 
mences,  §   3468. 

By  more   than   one   assignor,    §   3464. 

Cancellation  of,  not  without  consent  ol  parties,  S 
3473. 

Compensation  of  assignee,   §   3471. 

Compensation    of    sheriff,    §    3449. 

Conflict    of    laws,    §    3451. 

Contingent  liabilities  may  be  secured,   §  3452. 

Debts    that    may    be    secured,    §    3452. 

Deeds,  where  incumbered  property  sold,  §  3468. 

Dividends    to    creditors,    §    3468. 

Examination    of   assignor,    §    3462. 

Exempt    property    does    not    pass,    §    3*70. 


804  ASSIGNMENT    FOR    CREDITORS. 

How  made,  §§  3449,  3458. 

Insolvency   defined,    §    3450. 

Insolvent   creditor   may    make,    §    3449. 

Instrument   of,    subscribing,    recording,    etc,    §    3458. 

Insurance  on  life  does  not  pass,   §   3470. 

Inventory,   effect  of  refusal   or   neglect   to  make  and 

file,    §    3462. 
Inventory,   filing,    §§   3460-3465. 
Inventory,  filing  of,  eftect  of  want  of,  §  3465. 
Inventory,  time  to  file,   §   3461. 
Inventory    to    be    filed    before     assignee's     authority 

commences,    §    3468. 
Inventory,   what   to   contain,    §    3461. 
Inventory,    where    more    than    one    assignor,    §    3464. 
Limitations  on,   §   3449. 
Meeting,   notice   of,    §   3449. 

Meeting   of   creditors,   adjournment   of,    §    3449, 
Meeting    of    creditors,    majority    in    amount    of    de- 
mands   governs,    §    3449. 
Meeting    of    creditors,    proxy    how    executed,    §    3449. 
Meeting  of   creditors,   secured   creditors   not   to   vote, 

§    3449. 
Meeting  of  creditors,   sheriff  to   preside,    §   3449. 
Meeting    of    creditors,    voting,    §    3449. 
Meeting   of   creditors,    voting   may    be    in    person    or 

by    proxy,    §    3449. 
Modification    of    not    Mdthout    consent    of    parties,    § 

3473. 
Non-resident,    by,    §§    3449,    3451. 
Notice   of  meeting  of   creditors,    §    3449. 
Notice    of,    to    creditors,    requiring    them    to    present 

demands,   §   3468. 
Notice  to  creditors,  filing  of,   §   3468. 
Notice  to  creditors,   recitals  as  to,   effect  of,    §   3449. 
Out  of  state,    §§   3449,   3451. 
Partner  may  not  make,   §  2430. 
Passes   no   better  title  than  assignor  has,   §   3460. 
Perishables,  disposal   of,    §    3468. 
Preferences,    §§    3457,    3451. 
Publication  of  notice  of  creditor's   meeting,    §§   3449, 

3468. 
Real  property,  recording  act,  §  3466. 


ASSIGNMENT   FOR    CREDITORS — ASSOCIATION.  805 

Recording,    §§   3458,   3459,   3463,   3464,   3466. 

Recording,   effect  of  not,   §   3465. 

Recording  where  more  than  one  assignor,  §  3464. 

Reserving  interest   avoids,    §    3457. 

Restrictions   on,    §    3449. 

Secured  creditor  admitted   only  for  balance  of  debt, 
unless    releases    security,    §    3468. 

Secured    creditor    cannot    prove    any    of    debt,    when, 
§    3468. 

Secured  creditor  cannot  vote  at  meeting  without  re- 
leasing  security,    §    3449. 

Secured  creditor  may  prove  whole  debt,  how,  §  3468. 

Secured   creditor,   release   of   right   of   redemption,    § 
3468. 

Secured  creditor,  sale  of  the  property,   §   3468. 
.      Sheriff,  bond  of,   §   3467. 

Sheriff's  fees  and  expenses,   §  3449. 

Sheriff's   liability   on   official   bond,    §   3467. 

Sheriff's  transfer  to  assignee,  recitals  in,  prima  facie, 
§    3449. 

Sheriff  to  hold  property,   §  3449. 

Sheriff,  to  what  sheriff  to  be  made,  §  3449. 

Sheriff,  transfer  by  to  be  acknowledged  and  recorded, 
§    3458. 

Sheriff,  transfer  by  to  be  in  writing,  §  3458. 

Statement  of   creditor's   demand,    3449. 

Subscribing,    §    3458. 

Surrender  of  books,  papers  and  vouchers  to  assignee, 
court  may  order,   §   3462. 

Third    parties,    assignee    takes    subject    to    rights    of, 
§  3460. 

To  what  sheriff  to  be  made,  §  3449. 

Transfer  by   non-resident   not  affected   by   provisions 
concerning,   §  3451, 

Verification  of,  §  3462. 

Void,  when,  §  3457. 

Who  may  make,  §§  2430,  3449. 

Writing,  must  be  in,  §§  3458,  3459. 
ASSOCIATION:     See  Boards  of  Trade;  Chambers  of  Com- 
merce; Co-operative  Associations;  Corporations; 
Mechanics'   Institute;    Pioneer   Society;    Protec- 
tive Associations;    Friendly   Society. 


806  ASSOCIATION— AUCTION. 

Benefit  and  relief  associations,  act  relating  to,  p.  678. 
Building  and  loan  associations,  act  relating  to,  p.  681. 
Protective,  act  validating  acknowledgments,  p.  665. 
ASSURANCE,  executory  contract  of  sale  binds   seller  to 

give  covenant  of  further,  §  1733. 
ASYLUMS,   orphan,   managers   may   consent   to   adoption, 

when,  §  265. 
ATTACHMENT,  lien  of  officer,  §  3057. 
Mortgaged  personalty,  §§  2968-2970. 
Mortgaged  property,  how  attached,  §  2969. 
Mortgaged   property,    sale   of   and   disposition   of   pro- 
ceeds, §§  2968,  2970. 
ATTORNEY-GENERAL,  duty  of,  when  alien  heir  does  not 
claim,  §  1405. 
Duty  to  collect  penalty  where  railroad  raises  rates, 

§  494. 
May  inquire  into  corporations,  §  382. 
ATTORNEY  IN  FACT,  certificate  of  acknowledgment  by, 
form  of,  §  1192. 
How  to  convey  realty,  §  1095. 
Revoking  power  of,  §  1216. 
ATTORNMENT  of  tenant  to  stranger,  §  1948. 

To  landlord  on  grant  of  rent,  reversions  or  remainders, 

§  nil. 

AUCTION,   auctioneer   has   what   authority   from   bidder, 

§  2363. 
Auctioneer  has  what  authority  from  seller,  §  2362. 
Bids  by  seller  or  agent,  when  void,  §  1796. 
Bid,  withdrawing,   §  1T94. 
By-bidding,  §  1797. 
Defined,  §  1792. 
Delinquent  stock,  sale  of,  §  341. 
Five  days'  notice  of  sale  of  stock  in  trade  at,  to  be 

recorded,  §  3440. 
Memorandum,  auctioneer,  authority  of,  to  sign,  §  2363. 
Memorandum  of  sale,  auctioneer's,  effect  of,  §  1798. 
Pledge,  sale  of  to  be  by  auction,  §  3005. 
Sale  complete,  when,  §  1793. 

Sale  under  written  conditions,  modifying,  §  1795. 
Sale  without  reserve,  rights  of  buyer,  §  1796. 
Statute  of  frauds,  memorandum  by  auctioneer  satisfies, 

§  1624. 


AUTHOR— BANK.  807 

AUTHOR,  property  of,  in  writings,  §§  980-985. 

See  Literary   Property. 
AUTHORITY,  joint,  construction  of  words  giving,  §  12. 

Of  particular  persons:    See  Particular  Title. 
AVERAGE:    See  General  Average. 
AVULSION,  in  general,  §  1015. 
AWARD:    See  Arbitration. 

BAGGAGE  on  freight  train,   §   483. 

Railway,  checks  to  be  affixed  to,  §  479. 
Sale  of,  by  innkeeper  for  storage,  §  1862. 
See  CaiTiers. 
BAIL,  defined,  §  2780. 

Indemnity  in  legal  proceedings,  sureties  on,  called  bail, 

§  2780, 
Obligations  governed  by  statutes  specially  applicable, 
§  2781. 

See  Indemnity. 
BAILMENT,  gratuitous  depositary,  creditor  is  when,  §  1505. 
See  Deposit;    Depositary;    Hiring;    Loan;    Warehouse- 
man. 
BANK,  banking  corporation,  election  to  have  capital  stock, 
§  300. 
Book  showing  stockholders,  §  321. 
Capital,  amount  to  be  paid  up,  §  580. 
Capital,  amount  paid  up,  publication  of,  §  583a. 
Capital  stock,  amount  of  required,  §  580. 
Capital  stock,  amount  to  be  paid  on,  §  580. 
Capital   stock,   advertisement   or   statement   as   to,   to 

show  amount  paid  up,  §  583a. 
Capital  stock,  all  to  be  subscribed  before  certificate 

issued,  §  580. 
Capital  stock,  proceedings  on  electing  to  have,  §  300. 
Certificate  of  deposit  negotiable,  §§  3095,  3261. 
Deposits,  unclaimed,  statements  of  to  be  published,  pp. 

674,   675,   Stats. 
Dissolution  and  winding  up  of,  p.  676,  Stats. 
Dividends,  from  what  only  to  be  paid,  §  300. 
Dividends,  limitation  upon  power  to  pay,  §  300. 
Dividends,  power  to  declare,  §  583. 


808  BANK— BASTARD. 

Foreign  banking  partnership,  fictitious  name,  §  2467. 
Lien  of  banker,  §  3054. 

Misdemeanor,  advertisement  or  statement  as  to  capital 

stock  without  showing  amount  paid  up  is,  §  583a. 

Misdemeanor,   persons   engaged   in   banldng  guilty   of 

unless  true  names  shown,   §   582. 
Notice  showing  names  of  directors  and  number  and 

transfer  of  shares,  §  321. 
Powers  and  rights  of  banking  corporation,  §  300. 
Savings:    See  Savings  and  Loan  Corporations. 
Statute  concerning  persons  and  corporations  engaged 

in  banking  repealed,  p.  674. 
Surplus  and  reserve  fund,  creation  of,  §  583. 
Surplus    and    reserve    fund,   conversion    into    paid-up 

capital  stock,  §  583. 
Surplus  and  reserve  fund,  restoration  of  after  conver- 
sion into  capital  stock,  §  583. 
True  names  of  persons  engaged  in  banking  to  be  shown, 

§  582. 
Unclaimed    deposits,   banks   to   publish   statement   of, 

pp.  674,  675,  Stats. 
Winding  up  and  dissolution  of,  p.  676,  Stats. 
See  Corporations. 
BANK    COMMISSIONER,    land    and    building   corporation, 
report  of,   §   644. 
Land  and  building  corporations  subject  to,  §  647. 
BANK  NOTE  negotiable,  §§  3095,  3261. 
Negotiable  after  payment,  §  3261. 
BASTARD,    acknowledging,    and    receiving    into    family, 
§  230. 
Acknowledgment  of,  effect  of,  §  1387. 
Acknowledgment  of,  inheritance  by  and  from  in  case  of, 

§  1387. 
Adoption  of,  §§  224,  230. 
Children  legitimate  where  divorce  granted  or  marriage 

annulled,  §  1387. 
Custody  and  earnings  of,  mother  entitled  to,  §  200. 
Heir  to  mother,  §  1387. 

Heir  to  one  acknowledging  himself  to  be  father,  §  1387. 
Inheritance  by,  §  1387. 
Inheritance  from,   §   1388. 


BASTARD — BILL    OF    LADING.  809 

Legitimation  of,  §  230. 

Legitimized  by  marriage  of  parents,  §  215. 

Proof  of  illegitimacy,   §   195. 

See  Legitimacy. 
BELL,  sounding,  duty  and  liability  of  railroad  respecting, 

§  486. 
BENEFICIARY:    See  Trusts. 

BENEFIT,  consent  of  party  entitled  to,  necessary  to  trans- 
fer of  burden,  §  1457. 
He  who  takes  must  bear  burden,  §  3521. 
Voluntary  acceptance  of,  is  assumption  of,  §  1589. 
BENEFIT   CORPORATIONS:     See   Religious,    Social,   and 
Benevolent  Corporations. 
Act  relating  to,  p.  678. 

Articles  of  incorporation,  what  to  set  out,  §  594. 
Consolidation  of  debts  by  several  corporations  other 

than  for  profit,  §  605. 
Consolidation  of  debte  by  several  corporations  other 

than  profit,  procedure  for,  §  605. 
Cumulative  voting,  §  307. 

Directors  or  trustees,  number  of,   §§   290,  305. 
Fraternal  societies  exempt  from  insurance  laws,  §  45L 
Insurance,  mutual  life,  etc.,  §§  437-452. 
Records  to  be  open  to  inspection,  §  378. 
BENEVOLENT   ASSOCIATIONS   and   their  incorporation, 
§§   593-604. 
Bequests  to,  limitation  on  power  to  make,  §  1313. 
Not  insurance  corporations,  §  451. 

See     Benefit     Corporations;     Religious,     Social,     and 
Benevolent    Corporations. 
BICYCLE  as  baggage,   §  2181. 
BIGAMY,  ground  for  nullifying  marriage,  §  82. 
BILL  OF  EXCHANGE:     See  Negotiable  Instruments. 
BILL  OF    LADING,   any   reasonable   number  to  be  given 
consignor,  §  2130. 
Assignment  of,   §§  2127,  2128. 

Carrier  may  demand  surrender  before  delivery,  §  2132. 
Carrier  not  liable  for  more  than  value  stated  in,  §  2200. 
Conditions  in  limiting  liability,  §  2176. 
Consignor  entitled  to,  §  2130. 


810  BILL     OF     LADING-BONA    FIDE     PURCHASER, 

Defined,  §  2126. 

Delivery  according  to,  exonerates   carrier,   §   2131. 

Effect  of  accepting  from  carrier,  §  2176. 

Effect  of  on  carrier's  riglits  and  duties,  §  2129^ 

Indorsement  and  transfer  of,  §§  2127,  2128. 

Indorsement,  delivery  wittiout,  §  2128. 

Limitations  in,  effect  of,  §  2176. 

Limitations  in,  signature  when  necessary,  §  2176. 

Negotiable,  §§  2127,  2128. 

Refusal  to  give,  effect  of,  §  2130. 

Surrender   of,   carrier    may    demand    before    delivery, 

§  2132. 
Title  to  freight  passes  to  indorsee,  §  2127. 
To  be  given  consignor,  §  2130. 
Transfer  of  by  delivery,  §  2128. 
BILL    OF    SALE,  §  1053. 

BILLS  AND  NOTES:    See  Negotiable  Instruments. 
BISHOP,  religious  corporations,  §  602. 
BLANK.     Liability   of  one   signing   instrument   in   blank, 

§  3125. 
BOARDING-HOUSE  KEEPER:    See  Innkeepers. 
BOARDS    OF    TRADE,    act    providing    for    formation    of, 
p.  689. 
Act  validating  acknowledgments  by,  p.   665. 
BONA     FIDE     PURCHASER,    apparent    principal    cannot 
show  he  is  surety  against,  §  2382. 
Contract  not  reformed  as  against,  §  3399. 
Grant    of    property    subject    to    trust,    when    deemed 

absolute,  §  869. 
Implied  or  resulting  trust  not  to  affect,  §  856. 
Mortgagee,   rights   against   unrecorded   conveyance,    § 

1214. 
Presumption  in  favor  of  on  purchase  of  property  from 

husband  or  wife,  §  164. 
Revocation  of  gift  causa  mortis,  effect  on,  §  1151. 
Rights  of  as  against  unrecorded  instrument,   §§  1107, 

1214. 
Specific  performance  in  case  of,  §  3395. 
Title  of  from  one  claiming  by  succession,  effect  of  will, 
§  1364. 


BOND — BOTTOMRY.  811 

BOND,  cemeteries  may  issue,  §  611. 

Corporations  for  giving,  act  governing,  p.  680. 
Indemnity  on  transfer  of  stock  by  non-resident,  §  326. 
Issue  by  corporation,  restrictions  upon,  §§  359,  456. 
Negotiable,  §  3095. 

Non-residents,  on  transfer  of  stock,  §  326. 
Railroad  may  issue,  §  456. 
Railroad,  sinking  fund  to  pay,  §  457. 
Savings    and    loan   corporation    may   invest   in    what, 
§   574. 
See   Guaranty;    Indemnity.;    Suretyship. 

BOOKS,  mining  corporation,  of,  open  to  inspection,  p.  749, 

Stats. 
Of  corporation:     See  Corporations,  XL 

BORROWER:    See  Hiring;  Loan. 

BOTTOMRY  defined,  §  3017. 

Due,  loan  becomes,  when,  §  3026. 

Fraudulent  conveyance,  delivery,  §  3440. 

Insurable  interest  is  reduced  by,  §  2660. 

Interest,  court  may  reduce  rate  if  exorbitant,  §  3022. 

Interest,  rate  of,  §  3022. 

Is  subject  to  law  of  liens,  §  2877. 

Laches,  lien  lost  by,  §  3027. 

Lender's  rights  when  no  necessity  of  bottomry  existed, 
§  3023. 

Lien  is  independent  of  possession,   §  3027. 

Lien  lost,  how,  §  3027. 

Lien,  priority  over  others,  §  3028. 

Master  may  hypothecate  freight  money,  when,  §  302L 

Master  may  hypothecate  ship,  when,  §§  3019,  3020. 

Not  affected  by  law  of  mortgages,  §  2942. 

Owner's  right  to  hypothecate  ship,  §  3018. 

Owner  may  hypothecate  freightage,  §  3018. 

Personal  liability,  stipulation  for,  void,  §  3024. 

Preference  over  other  liens,  §  3028. 

Priority  between  bottomry  liens,  §  3029. 

Priority  of  lien,  §  2897. 

Recovery  in  case  of  total  or  partial  loss,  §  3023. 

Recovery  of  money  loaned,  §  3025. 
See  Respondentia. 


812         BOUNDARY — BUILDING  AND  LOAN  CORPORATION. 

BOUNDARY,  coterminous  owners  bound  to  maintain,  §  841. 

Road  as,  §  831. 

Street  as,  §  831. 

Transfer  of  land   bounded   by   highway  passes   what, 
§  1112. 

Waters  as,  rights  of  owners,  §  830. 

Ways  as,  §  831. 
BREACH    OF    PROMISE,  chastity,  want  of,  justifies,  §  62. 

To  marry,  damages  for,  §  3319. 
BRIDGE,  duty  of  wagon  road  corporation  concerning,  §  514. 

Statutes   governing,  bridge   corporations   apply   where 
owned  by  individual,  §  531. 

Water  company's  duty  to  maintain,  §  551. 
BRIDGE,    FERRY,    WHARF,    CHUTE    AND    PIER    COR- 
PORATIONS.   Annual  report,  penalty  for  failure 
to   make,   and   action   by   district   attorney   for, 
§  530. 

Annual  report,  president  and  secretary  to  make,  §  530. 

Annual  report,  publication  of,  §  530. 

Annual  report,  what  to  contain,  §  530. 

Corporate    existence    ceases,    in    what    contingencies, 
§  529. 

Non-user,  effect  of,  §  529. 

Statutes  relating  to  apply  where  bridge,  ferry,  wharf, 
chute,  or  pier  built  by  private  individual,  §  531. 

Tolls  not  to  be  taken  until  supervisors  grant  author- 
ity,   §    528. 

Works  to  be  completed  and  in  running  order,  iu  what 
time,  §  529. 
BROKER,  real  estate,  statute  of  frauds,  §  1624. 
See  Agency. 

BUILDING  AND  LOAN  CORPORATION,  arrearage,  effect 

of,  §  639. 
Arrearage,  notice  of,  §  639. 
Articles  to  set  forth  what,  §  633. 
Bank  commissioners'   power  over,   §   647. 
Bank  commissioner's  report  of,  §  644. 
Borrowing  money,  §  641. 
Capital  stock,  §  634. 
Certificates  of  stock,  §  634. 
Certificates  of  stock,  prior  and  new  series,  §  634. 


BUILDING    AND    LOAN    CORPORATION.  813 

Commissioners  of,  act  creating  and  prescribing  powers 
and   duties,   p.   681. 

Definition  of,  §  648. 

Dues,  liability  for  default  in  paying,  §  634. 

Dues  of  stockholders,  §  634. 

Election  to  continue  in  business  under  code  proceedinga 
on,  §  646. 

Exemption  of  shares  from  execution,  §  643. 

Fees,  entrance  and  transfer,  §  634. 

Foreign,  deposit  by  as  guaranty  fund,  and  disposition 
thereof,  §  645. 

Foreign,  penalty  for  non-compliance  with  statute,  §  645. 

Forfeiture  for  arrears  in  payment,  §  639. 

Formation  and  organization  of,   §   633. 

Free  shares  defined,  §  634. 

Free  shares,  payment  of,  §  636. 

Free  shares,  retiring,  §  635. 

Interest,  §  634. 

Interest,  rate  of,  §  638. 

Lease  of  its  property,  §  640. 

Loan,  repayment,  §  638. 

Loans,  how  and  from  what  made,  §  637. 

Loans,  security  that  must  be  given  for,  §  638. 

Losses,  apportionment,  §  642. 

Matured  and  canceled  stock,  §  634. 

Maturity  of  stock,   §   636. 

May  purchase  realty  on  which  it  has  mortgage  or  in- 
cumbrance, §  640. 

Membership,  and  eligibility  to,  §  643. 

Minor  may  hold  shares,  §  643. 

Mortgage  of  its  property,  §  640. 

Payment  of  matured  shares,  §  636. 

Perjury  in  making  reports,  §  644. 

Pledged  shares,  defined,  §  634. 

Pre-existing,  proceeding  to  continue  existence  of,  §  646. 

Premium,  §  637. 

Profits,  apportionment  of,  §  642. 

Realty,  sale,  lease,  or  mortgage  of,  §  640. 

Report,  annual,  to  bank  commissioners,  §  644. 

Reports,  liability  for  not  making,  §  644. 

Reports  other  than  annual,  §  644. 


814  BUILDING    AND    LOAN    CORPORATION— CARD. 

Taxation  on  issuance  of  certificates,  §  648 1^. 
What  included  in  term,  §  648. 

See  Savings  and  Loan  Corporations. 
BULLS.    Lien  of  owner  of  bull  used  for  propogation.  p.  738, 

Stats. 
BURDEN,  consent  of  party  entitled  to  benefit  necessary 
to  transfer  of,  §  1457. 
He  who  takes  benefit  must  bear,  §  3521. 
Voluntary    acceptance    of    benefit    is    assumption    of, 
§   1589. 
BURDEN   OF   PROOF,  to  invalidate  consideration,  §  1615. 
BURIAL,  right  of,  §§  801,  802. 

See  Cemetery. 
BUSINESS,   good-will   of:      See   Good-will. 
BUSINESS  DAYS,  what  are,  §  9. 
BUTTE  COUNTY,  tolls  in,  §  514. 

CANAL    CORPORATION,  §§  548-552. 

CANCELLATION  and  alteration  of  contracts,  in  general, 
§§  1697-1701. 

Acceptance  of  bill  of  exchange,  cancellation  of,  §  3198. 

Deed  of,  does  not  revest  title,  §  1058. 

Extinction  of  contract  by,  §§  1699,  1700. 

In  part,  §  3414. 

Instrument  obviously  void,  whether  canceled,  §  3413. 

Instruments,  of,  in  general,  §§  3412-3414. 

Will,  of,  §§  1292,  1293. 

Written  instrument,  when  canceled,  §  3412. 

CARE:    See  Negligence. 

Great,  borrower  to  use,   §   1886. 

Great,    carrier  of  messages  for  reward,  §  2162. 

Great,  employee  for  his  own  benefit,  §  1979. 

Great,  shipmaster,  §  2043. 

Ordinary,  carrier  of  property  for  reward,  §  2114. 

Ordinary,  depositary  for  hire  to  use,  §  1852. 

Ordinary,  employee  for  reward,  §  1978. 

Ordinary,  gratuitous  carrier  of  persons,  §  2096. 

Ordinary,  hirer,  §  1928. 

Ordinary,  trustee,  §  2259. 

Ordinary,  voluntary  agent,   §   2078. 

Slight,  gratuitous  carrier  of  property,  §  2114. 


CARE — CARRIER.  815 

Slight,  gratuitous  depositary  to  use,  §  1846. 
Slight,  gratuitous  employee,  §  1975. 
Utmost,  carrier  of  messages  by  telegraph,  §  2162. 
Utmost,  carrier  of  persons  for  reward  to  use,  §  2100. 
CARELESSNESS:    See  Negligence. 
CARGO:    See  Shipping. 

CARRIER,  act  of  God  relieves  of  liability,  §  2194. 
Bill  of  lading:    See  Bill  of  Lading. 
Care  and  diligence  required  of,  generally,  §  2114. 
Chattel  mortgage  of  property  of,  to  be  recorded  where, 

§  2961. 
Common,  who  are,  §  2168. 
Common,  defined,  §  2168. 
Compensation,  §  2173. 

Compensation,  payment  of  in  advance,  §  2173. 
Compensation,  refusal  to  pay,  §  2173. 
Connecting  carrier,  accepting  freight  for  point  beyond 

route,  duty,  §  2201. 
Connecting,  proof  in  case  of  loss  of  through  freight, 

§  22Q2. 
Consignee  defined,  §  2110. 
Consignee's    refusal    to    accept   and    remove,    storage, 

§  2121. 
Consignor  defined,  §  2110. 
Contract  of  carriage  defined,  §  2085. 
Damages  for  not  receiving  freight,  etc.,  §  3315. 
Delay,  damages  for,  §  3317. 
Delay,  liable  for,  on,  when  negligent,  §  2196. 
Delay,  liable  only  when  caused  by  want  of  ordinary 

care,  §  2196. 
Delay  of  freight,  when  only  liable,  §  2196. 
Delays,  unreasonable,  carriage  to  be  without,  §  2104. 
Delivery  according  to  bill  of  lading  exonerates  carrier, 

§  2131. 
Deliver,    carrier    may    demand    surrender     of    bill    of 

lading  before,  §  2132. 
Delivery  in  part,  apportionment  of  freightage,  §§  2140, 

2141. 
Delivery,  liability  for  non-delivery,  §  3316. 
Delivery  not  made,  how  carrier  may  exonerate  himself, 

§  2121. 


818  CARRIER. 

Delivery  not  made,  obligations  of  carrier,  §  2120. 
Delivery  of  freight,  manner  of,  §§  2118,  2119, 
Delivery  of  freight,  place  of,  §§  2118,  2119. 
Delivery  to  connecting  carrier,    2:^01. 
Delivery  to  holder  of  bill  of  lading  exonerates,  §  2131. 
Exemption  from  liability,  none  when  negligent,  §  2195. 
Expense  of  transportation  of  thing  sold,  §  1755. 
Freight,   arrival   notice,   duty  and   liability  of   carrier 

after  §  2120. 
Freight  defined,  §  2110. 
Freight,  delivery  to  holder  of  bill  of  lading  exonerates, 

§  2131. 
Freight,  not  accepted,  storage  by  carrier,  §  2121. 
Freight  not  delivered,  obligations  of  carrier,  §  2120. 
Freight,  notice  of  deposit  in  warehouse,  §  2121. 
Freight,  obligation  to  accept,  §  2169. 
Freightage,    additional    on    carriage    farther    or    more 

expeditiously  than  agreed,  §  2143. 
Freightage,     apportionment     according     to     distance, 

§  2142. 
Freightage,  apportionment  by  contract,  §§  2140,  2141. 
Freightage,  consignee  liable  for,  when,  §  2138. 
Freightage,  consignor  liable  for,  when,  §  2137. 
Freightage  defined,  §  2110. 

Freightage  for  natural  increase  of  freight,  §  2139. 
Freightage,  lien  for,   §§   2144,  2204. 
Freightage,  marine  insurance,  §§  2661-2663. 
Freightage,  right  to  on  receiving  freight  short  of  its 

destination,  §  2142. 
Freightage,  sale  of  perishables  for,  §  2204. 
Freightage,  to  be  paid  when,  §  2136. 
General  average:    See  General  Average. 
Gratuitous,  diligence  required,  §  2114. 
Gratuitous,  obligations  of,  §§  2089,  2090. 
Inland  carrier,  liability  of,  §  2194. 
Inland  carrier,  liability  of,  what  excuses,  §  2194. 
Inland,  is  what,  §  2087. 
Insurable  interest  of,  §  2548. 
Jettison:    See  Jettison. 
Kinds  of,  §  2086. 
Liability  of,  §  2194. 
Liability  of,  what  excuses,  §  2194.  : 


CARRIER.  817 

Limitation  can  be  made  by  special  contract,  §  2174. 

Limitation  of  liability,  fraud,  not  allowed  in  case  of, 
§  2175. 

Limitation  of  liability,  negligence,  not  allowed  in  case 
of,  §  2175. 

Limitation  of  liability,  willful  wrong,  not  allowed  in 
case  of,  §  2175. 

Limitation  on  liability,  assent  to  be  written,  when, 
§  2176. 

Limitation  on  liability,  assent  to  on  accepting  bill  of 
lading,  §  2176. 

Limitation  on  liability,  cannot  be  by  general  notice, 
§   2174. 

Limitation  on  liability  without  notice  of  value,  §§  2177, 
2200. 

Limiting  liability,  §§  2174-2176. 

Loss  of  freight,  carrier  not  liable  for,  when,  §  2194. 

Loss  of  freight,  carrier's  liability  for,  §  2l54. 

Loss  of  valuable  papers  or  money,  liability  for,  §  2177. 

Loss,  proof  in  case  of,  §  2202. 

Loss  through  negligence,  no  exemption  from  liability, 
§  2195. 

Marine:      See  Marine  Carriers. 

Messages,  of:     See  Telegraph  Companies. 

Must  start  on  time,  §  2172. 

Negligence  of,  no  exemption  from  liability  in  case  of, 
§  2195. 

Notice  of  arrival,  carrier  to  give,  §§  2120,  2121. 

Notice  of  value  of  freight,  limitation  on  liability  with- 
out, §  2200. 

Passenger   carriers:      See    Passenger   Carriers. 

Preferences  not  to  be  given,  §  2170. 

Preferences  to  be  given  to  state  and  United  States, 
§  2171. 

Property,  of,  care  required  of,  §  2114. 

Property,  of,  conflicting  orders  of  consignee  and  con- 
signor, §  2116. 

Property,  of,  must  obey  directions,  §  2115. 

Services  of,  other  than  of  carriage  and  delivery,  §  2203. 

Telegraph  company  is  not  common  carrier,  §  2168. 

Time,  must  start  on,  §  2170. 

United  States,  preference  to,  §  2171. 

Civ.   Code — 35 


818  CARRIER— CEMETERY  CORPORATION. 

Valuable  articles,  limitation  on  liability  for,  when  no 
notice,  §  2200. 

Warehouseman,  carrier  when  liable  as,  §  2120. 

Who  are  common  carriers,  §  2168. 

Writings,  valuable,  liability  for,   §  2200. 

Written  contract,  effect  of,  §  2176. 

See  Railr6ad  Corporation. 
CEMETERY,  burial,  right  of  a,  servitude,  §§  801,  802. 

Establishing  by  corporation,  §  595. 

Lots,  disposal  of,  §  598. 
CEMETERY  CORPORATION,  annual  report,  §  609. 

Bonds  may  be  issued,  §  611. 

Bonds,  sixty  per  cent  of  proceeds  of  sales  to  be  applied 
on,  §  611. 

Burial,  right  of  where  several  owners  of  lot,  §  613. 

Deeds  by,  manner  of  execution  of,  pp.  689,  710,  Stats. 

Improvement  of  grounds,  §  616. 

Land  acquired  and  disposed  of,  how,  §  608. 

Land,  how  much  may  be  held  by,  §  608, 

Lands,  maps  of,  §  608. 

Lands  of,  how  may  be  paid  for,  §  611. 

Lands  of,  payment  for,  terms  for  lots  and  regulations 
not  to  be  changed,  §  611. 

Lands  of,  where  to  be  situated,  §  608. 

Lands,  sale  of,  order  for  how  obtained,  §  615. 

Lands,  sale  of,  procedure  on,   §   615. 

Lands  to  be  held  exclusively  for  cemetery,  §  608. 

Lot  inalienable  after  interment,  §  613. 

Lot  owners  previous  to  purchase  to  be  members  of, 
§  614. 

Lot,  sale  of,  after  disinterment,  §  613. 

Lots,  rights  and  interests  in,  §  613. 

Lots,  surveying,  etc.,  §  608. 

Members  eligible  to  vote  and  hold  oflEice,  who  are,  §  609. 

Office,  who  eligible  to,  §  608. 

Personal  property,  may  be  held,  and  how  much,  §  610. 

Property  held  in  trust,  investment  of  proceeds,  §  616. 

Property  may  be  held  in  trust,  proceeds  to  be  used, 
how,  §  616. 

Rights  where  there  are  several  owners  of  lot,  §  613. 

Rural    cemetery    corporations,    act    authorizing    incor- 
poration of,  p.  689. 


CEMETERY    CORPORATION — CHATTEL    REAL.  819 

Sale  of  lands,  proceedings  on,  §  615. 

Surplus,  how  disposed  of,  §  610.  , 

Trust,   property   may   be   held   in,   for   what  purposes, 
§§  612,  616. 
CERTAIN.     That  is  certain  which  can  be  made  certain, 

§  3535. 
CERTIFICATE,  deposit,  of,  negotiable,  §§  3095,  3261. 

Deposits,  of,  savings  and  loan,  may  issue,  §  576. 

False,  by  corporate  officer,  §  316. 

Indenture  of  apprenticeship,  of,  §  275. 

Marriage,  of,  §§  73,  74,  79. 

Mortgage,  of  discharge  of,  filing,  §§  2939,  2940. 

Of  proof  of  loss,  under  insurance,  when  dispensed  with, 
§  2637. 

Of  stock:     See  Corporation. 

Partnership  under  fictitious  name,  of,  §§  2466-2471. 

Proof  of  instrument,  certificate  of,  what  to  state,  §  1200. 

Restoration  of  lunatic,  of,  as  evidence  of  legal  capacity, 
§  40. 

That  seaman  exerted  himself  to  save  cargo,  etc.,  §  2059. 
CHAMBERS  OF  COMMERCE,  act  providing  for  formation 
of,  p.  689. 

Act  validating  acknowledgments  by,  p.   665. 
CHARITABLE    USE,  restrictions  on  power  of  devise  to, 

§  1313. 
CHARITY,  restrictions  on  power  to  bequeath  to,  §  1313. 
CHARTER  PARTY.    Charterer,  who  may  be,  §  1959. 

Defined,  §  1959. 

Insurable  interest  exists  under,   §   2663. 

Insurable  interest  of  charterer,  §  2665. 

Shipmaster  may  enter  into,  §  2376. 

Ship's  manager  may  enter  into,  §  2388. 

What  rights  in  ship  may  be  given  under,  §  1959, 
See  Shipping. 
CHASTITY,  want  of,  avoids  promise  to  marry,  §  62. 
CHATTEL  INTEREST  defined,  §  765. 
CHATTEL  MORTGAGE:    See  Mortgage. 
CHATTEL    REAL  defined,  §  765. 

Estate  for  life  of  third  person  as,  §  766. 


820  CHATTEL    REAL— CLERK    OF    COURT. 

Limitation  of  power  of  suspension,  §  770. 
May  commence  at  future  day,  §  773. 
CHECK:    See  Negotiable  Instruments. 

CHILD  EN  VENTRE.    Posthumous  cbild  takes  as  living  at 
testator's  deatli,  §  698. 
Rights  of,  §§  29,  698. 
Talces  under  will,  when,  §  1339. 

See   Infant;    Parent  and   Child. 
CHILDREN:    See  Infants;  Parent  and  Child. 
CHINESE,  license  for  marriage  between  and  white  not  to 

issue,  §  69. 
CHOSE  IN  ACTION  defined,  §  953. 
Survivorship,  §  954. 
Transfer  of,  §  954. 
CHURCH,  right  of  seat  at,  §§  801,  802. 

See  Religious  Corporation. 
CHUTE,  corporations,  §§  528-531. 

Statutes   governing   chute    corporations    govern   when 

owned  by  individual,  §  531. 
See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 
CITY,  water  companies'  relations  with,  §§  548,  549. 

See  Municipal  Corporations. 
CITY  RECORDER,  marriage,  may  solemnize,  §  70. 
CIVIL  CODE:     See  Code. 

CLASS,  devise  or  bequest  to,  who  included.  §  1337. 
CLERK  OF  COUNTY,  articles  of  incorporation  to  be  filed 
with,  §  296. 
Certificate  of  formation  of  special  partnership  to  be 

filed  with,  §  2480. 
Duty  of,  regarding  marriage  licenses,  §  69. 
Duty  of,   where   acknowledgment  is  taken  by  justice 

of  peace,  §  1194. 
May  take  acknowledgment,  §  1181. 
Must  keep  register  of  partnership  names,  §  2470. 
Notice  of  dissolution  of  special  partnership  to  be  filed 

with,  §  2509. 
Petition   for   appraisement   of   homestead   to   be   filed 
with,  §  1247. 
CLERK  OF  COURT,  of  court  of  record  may  take  acknowl- 
edgment, §  1181. 
Of  supreme  court  may  take  acknowledgment,   §  1180. 


CODE— COLLEGES.  821 

CODE,  Cited  how,  §  21. 

Construction  where  it  derogates  from  common  law,  §  4. 

Construed  liberally,  §  4. 

Continuation  of  statutes  and  common  law,  §  5. 

Definition  of  terms,  §  14. 

Divisions  of,  §  1. 

[n  abrogating  statutes  does  not  revive  others,  §  20. 

Pending  actions  not  affected  by,  §  6. 

Private  statute,  how  affected  by,  §  20. 

Repeals  other  statutes,  how  far,  §  20. 

Retroactive,  not,  §  3. 

Retroactive,  not  as  to  wills,  §  1375. 

Statutes  in  existence  at  adoption  of,  how  affected  by, 
§  20. 

Terms  defined,  §  14. 

Title  of,  §  1. 

Vested  rights  not  affected  by,  §  6. 

When  takes  effect,  §  2. 
CODICIL  included  under  will,  §  14. 

Execution  of,  republishes  will,  §  1287. 

Revocation  of  will  revokes,  §  1305. 
COHABITATION,  when  prevents  nullifying  marriage,  S  82. 
COLLATERAL  SECURITY:    See  Pledge. 
COLLATERAL  WARRANTY  abolished,  §  1115. 

Liability  of  heir  or  devisee  under,  §  1115. 
COLLECTION,  agent  for,  duties  of,  §  2021. 

Effect  of  warranty  of,  §  2800. 

Partner  acting  in  liquidation  may  make,  §  2461. 
COLLEGES,  any  number  of  persons  may  incorporate,  §  649. 

Articles  of  incorporation  to  contain  what,  §  649. 

Consolidated,  colleges  may  be,  §  652. 

Consolidation,  board  of  trustees,  how  constituted  and 
elected,   §   652. 

Consolidation,  how  effected,  §  652. 

Consolidation  of,  §§  652,  653. 

Consolidation,  trustees  to  report  annually,  §  653. 

Meeting  of  trustees,  statement  in  minutes  that  notice 
given   conclusive,    §    651. 

Minutes  of  meeting,  certification  of,  §  651. 

Transfer  of  property  from   existing  to  new   colleges, 
i  651. 


822  COLLEGES— COMPENSATION. 

Trustees  and  their  powers,  §  650. 
Wills,  taking  under,  §  1275. 

COLLISION,  from  breach  of  rules  of  navigation,  right 
of  recovery,  §  971. 

From  breach  of  rules  of  navigation  implies  willful  de- 
fault, §  972. 

Loss,  by,  how  apportioned,  §  973. 

Rules  for  avoiding,  §  970. 

COLLUSION  defined,  §  114. 
Divorce  denied  on,  §  111. 
Presumption  of,  lapse  of  time,  §  125. 

COMBINATIONS,  livestock,  to  obstruct  sale  of,  prevented, 

p.   666,   Stats. 

COMMISSIONERS,    building    and    loan,    act    relating    to, 
p.  681. 
Railroad,  act  organizing  and  defining  powers  of,  p.  766. 
Transportation,  act  relating  to,  p.  766. 

COMMISSION  MERCHANT:    See  Factors. 

COMMON  CARRIER:    See  Carrier. 

COMMON  LAW,  code  continuation  of,  §  5. 

Statutes  in  derogation  of,  construction  of,  §  4. 

COMMUNITY  PROPERTY:  See  Husband  and  Wife; 
Property. 

COMPENSATION,  adult  child,  of,  §  210. 
Appraisers  of  homestead,  of,  §  1258. 
Assignee  for  creditors,  of,  §  3471. 
Borrower,  of,  §§  1892,  1894. 
Death  of  employer,  after,  §  1998. 
Depositary   for    hire,   of,   for    fractions   of    week    or 

month,  §  1853. 
Depositary,  voluntary,  of,  §  2078. 
Employee  dismissed  for  cause,  of,  §  2002. 
Employee  quitting  for  cause,  of,  §  2003. 
Finder,  of,  §  1867. 
For  loan  called  interest,   §  1915. 
For  mistake,  when  allowed,  §  3391. 
Law,  given  by,  §  3275. 
Lienor  not  entitled  to,  §  2892. 
Managing  owner  of  ship  not  entitled  to,  §  2072. 


COMPENSATION — CONDITION.  823 

Of  common  carrier,   §  2173. 

Partial  failure  to  perform,  on,  §  3392. 

Partner  not  entitled  to,  §  2413. 

Rescission,  on,   §  3408. 

Service  continued  beyond  two  years,  where,  §  1980. 

Trustee,  of,  §§  2273,  2274. 

Voluntary  interference  with  property,  §  2078. 

Without  employment,    §    2078. 
COMPOSITION  of  author,  property  in,  §§  665,  980-985. 
COMPOUND    INTEREST,   where   trustee   omits   to   invest 

funds,  §  2262. 
COMPUTATION  OF  TIME,  §  10. 
CONCEALMENT  defined,  §  2561. 

Effect  of,  §  2562. 

CONDITION.    Alienation,  conditions  restraining  effect  of, 

§  711. 

Attached  to  proposal,  §  1582. 

Concurrent,  defined,  §  1437. 

Concurrent,  performance,  §§  1439,  1498. 

Enjoyment  of  property  is  upon,  when,  §  707. 

Forfeitures,  involving,   strictly  construed,   §   1442. 

Impossible,  void,   §   1441. 

Kinds  of,  §§  708,  1435. 

Marriage,  condition  in  restraint  of,  effect  of,  §  710. 

May  inure  to  stranger,   §   1085. 

Offer  of  performance  to  be  free  from,  §  1494. 

Performance  excused  on  refusal  by  other  party  to  per- 
form, §  1440. 

Performance  of  as  an  acceptance,  §  1584. 

Performance  of  essential,  when,  §  1439. 

Precedent  and  subsequent,  §  708. 

Precedent,   defined,    §§    708,    1346,   1436. 

Precedent,  grant  on,  §  1110. 

Precedent,  performance  of,  §  1498. 

Precedent,  performance  of  essential,  §  1439. 

Precedent,  requiring  performance  of  wrongful  act,  ef- 
fect of,  §  709. 

Precedent,  what,  §  708. 

Precedent,  wills,    §§   1346-1348. 

Repugnant,  void,  §§  711,  1441. 


824  CONDITION— CONSANGUINITY. 

Right  of  re-entry  for  breach  of  condition  subsequent 
can  be  transferred,  §  1046. 

Subsequent,  defined,  §§  708,  1349,  1438. 

Subsequent,  grant  on,  §  1109. 

Subsequent,  what,  §  708. 

Subsequent,  wills,  §  1349. 

Unlawful,  void,   §   1441. 
CONDITIONAL,   delivery   cannot  be  made   to   grante©  or 
agent,  §  1056. 

Devise  or  bequest,  what,  §  1345. 

Devise  or  bequest,  when  vests,  §  1347. 

Limitation,  remainder  when  deemed  to  be,  §  778. 

Obligation,  involving  forfeiture,  how  construed,  §  1442. 

Obligation,  liability  of  guarantor  on,  §  2808. 

Obligation,  performance  of,  excused,  §  1440. 

Obligation,  prerequisites  to  enforcing,  §  1439. 

Obligation,   when   is,    §   1434. 

Offer  of  performance,  not  to  be,  §  1494. 

Will,  when  may  be  denied  probate,   §  1281. 
CONDONATION:     See  Divorce. 

CONFLICT  OF  LAWS,  assignment  for  creditors,  §  3451. 

Contracts,  in  general,  §  1646. 

Injunction,  §  3423. 

Marriages  out  of  state  valid,  §  63. 

Personalty,  §  946. 

Realty,  §  755. 

Wills,  §  1376. 
CONFUSION   OF  GOODS:     See  Accession. 

Ownership  of  things  formed  by,  §§  1025-1032. 
CONGRESS,  laws  of,  govern  carriers  by  sea,  §  2088. 

Laws  of,  govern  seamen,  §  2066. 

Liability  of  marine  carrier  regulated  by,  §  2198. 
CONNIVANCE,  contract  obtained  through,  void,  §  1689. 

See  Divorce. 
CONSANGUINITY.      Collateral      consanguinity      defined, 
§  1390. 

Computed  how,  §§  1389-1394. 

Degrees  in  collateral  line,  computation  of,  §  1393. 

Degrees   in   direct  line,    §   1392. 

Degrees  of  kindred,  how  computed,  §  1389. 


CONSANGUINITY— CONSENT.  825 

Direct  and  collateral,  §§  1390-1393. 

Direct  ascending  line,  §  1391. 

Direct  consanguinity,  what,  §  1390. 

Direct  descending  line,  §  1391. 

Half  blood,  inheritance  by  kindred  of,  §  1394. 
CONSENT  to  contract:      See   Contract. 

Acquiescence  in  error  takes  away  right  of  objecting, 
§  3516. 

Adoption,  of  child's  parents  necessary,  §  224. 

Adoption,  of  child,  when  necessary,  §  225. 

Adoption,  of  wife,  necessary  for,  §  223. 

Adoption,  of  parents  not  necessary  when,  §  224. 

Adoption,  where  child  in  orphan  asylum,  §  224. 

Apprenticeship  of  child,  for,   §§   265,   266. 

Beneficiary,  of,  necessary  to  allow  trustee  to  hold  ad- 
verse interest,  §  2232. 

Child,  written,  of  mother,  necessary  to  transfer  cus- 
tody of,  §  197. 

Contract  may  be  rescinded  by  mutual,  §  1689. 

Depositor,  of,  necessary  to  use  of  deposit  by  deposi- 
tary, §  1835. 

Divorce,  corrupt,   §   112. 

Divorce,  coiTupt,  how  manifested,  §  113. 

Guaranty,  not  necessary  to  create,  §  2788. 

Landlord,    of,    necessary    to    attornment    to    stranger, 
§  1948. 

Marriage,  alone  does  not  constitute,  §  55. 

Marriage,  how  manifested  and  proved,   §   57. 

Marriage,   incapacity   to,   when  ground   for  annulling, 
§  82. 

Marriage,  of  parties  necessary  to,  §  55. 

Marriage,  who  are  capable  of  giving,  to,  §  56. 

Mutual,  sufficient  consideration  for  agreement  to  sepa- 
rate, §  160. 

Of  husband  not  required  for  transfer  of  wife's  separate 
property,   §   162. 

Of  party  entitled  to  benefit  necessary  to  transfer  of 
burden,   §  1457. 

One  consenting  to  act  is  not  wronged  by  it,  §  3515. 

Partner,  unanimous,  necessary   to  admission  of  new, 
§   2397. 

Partnership,  of  all,  necessary  to  creation  of,  §  2397. 


826  CONSENT— CONSIDERATION, 

Principal,  of,  necessary  to  release  of  factor,  §  2030. 

Rescission  of  ratification,  not  necessary  to,  §  2314. 

Separation  by,  not  desertion,  §  99, 

Separation,  to,  a  revocable  act,  §  101. 

Thing   obtained    without,    of   owner,    to    be    restored, 
§  1712, 

Trust,  mutual,  necessary  to  create,   §  2251, 

Voluntary  interference  with  property  without,  §  2078. 
CONSIDERATION:      See  Contract. 

Agency,  not  necessary,  §  2308. 

Burden  of  proof  to  invalidate,  §  1615. 

Effect  of  transfer  where  paid  by  third  person,  §  853. 

Executed   or   executory,    §    1G09. 

Executory,  §§  1610,  1611. 

Executory,   how   ascertained,    §§   1610,  1611. 

Executoi-y,  subject  to  what  provisions  of  code,  §  1609. 

Failure  of,  rescission,    §   1689. 

Good,   defined,   §   1605. 

Guaranty,  for,  §§  2792,  2793. 

How  ascertained,  where  contract  does  not  determine, 
§  1611. 

How  ascertained  where  left  to  discretion  of  third  per- 
son,  §  1611. 

niegal  in  part,  effect  on,  §  1608. 

Impossibility    of    ascertaining,    §§    1612,    1613. 

Lawful,  must  be,   §   1607. 

Lawful,  what  is,   §§   1607,  1667. 

Leaving  amount  of  to  decision  of  third  person,  <>§  1610, 
1611. 

Minor  to  restore  on  disaffirmance,  §  35. 

Moral  obligation,  §  1606. 

Negotiable  instrument,  for,  presumption  of,   §   3104. 

Negotiable  instrument,  want  of,  effect  of,  §  3122. 

New,  altering  contract  without,   §   1697. 

Not  necessary  on  voluntary  transfer,  §  1040. 

Of  contract  between  spouses  for  separation,   §   160. 

Ratable    proportion    when    performance    of    obligation 
prevented,  §  1514. 

Return  of  by  minor,  on  disaffirming  contract,  §  35. 

Voluntary  transfer,  in  case  of,  §§  1040,  1146. 

Written  instrument  presumptive  of,  §  1614. 


CONSIGNMENT — CONTINUING    GUARANTY.  827 

COi^JGlGNiViENT.     Conflicting  orders,    §    2116. 

Consignee  defined,   §  2110. 

Consignor  defined,  §  2110. 

Consignor's  directions  to  carrier,  §§   2115,  2116. 

Delivery    of,    §§    2118-2122. 

Freightage,  liability  for,   §§   2136-2144. 

Insolvency  of  consignee,  what  is,  §  3077. 

Special  contract  of  carrier,  §  2176. 

Stoppage  in  transit,   §§  3076-3080. 
CONSOLIDATION.     Consolidated  bonded  debt  by  several 
corporations,   §   359. 

Debts,  consolidation  of  by  corporations  other  than  for 
profit,   §   605. 
CONSTRUCTION,  code  to  be  liberally  construed,  §  4. 

Condition  involving  forfeiture  strictly  construed,  s  1442. 

Contemporaneous  construction  is  the  best,  §  3535. 

Interpretation  giving  effect  preferred,  §  3541. 

Interpretation  must  be  reasonable,   §   3542. 

Joint  authority,  of,  §  12. 

Particular  expressions  qualify  general,  §  3534. 

Words  and  phrases,  of,  §  13. 

See  Contracts;   Conveyance,  etc. 
CONSTRUCTIVE  delivery,   §  1059. 

Fraud   defined,    §   1573. 

Notice  defined,  §§  18,  19. 
CONSUL   of   United    States   may   take   acknowledgments, 
§  1183. 

CONTEMPORANEOUS     CONSTRUCTION     is     the     best, 

§   3535. 

CONTEMPT,   officer  taking  acknowledgment  may  punish 
for,  §  1201. 

CONTINGENT  INTEREST  defined,  §  695. 
Future  interest  is  when,   §  695. 
Not  void  because  improbable,  §  697. 

CONTINGENT   REMAINDER,  how  created,   §  773. 

On  prior  remainder  in  fee,  §  772. 

On  term  of  years,   §  776. 
CONTINUANCE  of  corporate  existence,  §§  287,  401. 
CONTINUING  GUARANTY:     See  Guaranty. 


828  CONTRACTS,  I,  II. 

CONTRACTS. 

I.     Definition  and  kinds  of. 

II.     Wlio  may  contract;   parties  to. 

III.  Essentia!  elements;    offer;    acceptance;    consent; 

waiver  of  code  provisions. 

IV.  Consideration. 

V.     Execution    and    delivery;     reduction    to    writing; 

seal;  when  takes  effect. 
VI.     Validity   of;    object  of  contracts. 
VII.     Construction  of. 
VIII.     Performance. 

1.  Generally. 

2.  Time  of. 

3.  Excuse,  prevention  or  waiver  of. 

4.  Offer  of. 

5.  Partial. 

IX.     Alteration;    cancellation;    release;   extinction. 
X.     Actions   on;    liability   under. 
Joint  and  several:      See  Joint. 
Reformation  of:     See  Reformation. 
Rescission  of:     See  Rescission  of  Contracts. 
Particular  contracts:     See  Particular  Title. 

I.  Definition  and  kinds  of. 
Defined,  §  1549. 
Executed,  is  what,  §  1661. 
Executory,  is  what,  §  1661. 
Express,  defined,  §  1620. 

Express  or  implied,  contracts  are,  §  1619. 
Implied,   defined,   §   1621. 
Implied  or  express,  §  1619. 

II.  Who  may  contract;    parties  to. 

Infants,  competency  of  to  contract,  §§  1556,  1557. 

Infants':      See  Infant. 

Insanity  revokes  proposal,  §  1587. 

Lunatics,  competency  of  to  contract,  §§  1556,  1557. 

Lunatics:      See   Insane   Person. 

Parties,   competent,   essential,   §   1550. 

Parties,  identification  of,  necessary,  §  1558. 

Parties,   substituting,    §   1531. 

Parties,  who  competent,  §§  1556,  1557. 

Who  may  contract,  §§  1556,  1557. 


CONTRACTS,   III,   IV.  829 

III.  Essential    elements;     offer;     acceptance;     consent; 

waiver  of  code   provisions. 

Acceptance  by  performance  of  conditions,   §   1684. 

Acceptance,  communicated  how,  §  1582. 

Acceptance  complete,  when,  §  1583. 

Acceptance,  conditions  attached  to,  §  1582. 

Acceptance,  mode  of  communicating,  §  1582. 

Acceptance  must  be  absolute,   §  1585. 

Acceptance,  qualified,  effect  of,  §  1585. 

Acceptance,  receipt  of  consideration  is,  §  1584. 

Acceptance,  voluntary,  of  benefits  of  transaction, 
§  1589. 

Acceptance  when  deemed  complete,  §  1583, 

Consent  apparent,  when  not  free,  §  1567. 

Consent  essential,   §  1550. 

Consent,  essentials  of,  §  1565. 

Consent,  fraud,  when  deemed  obtained  by,  §  1568. 

Consent,  how  communicated,   §   1581. 

Consent,  mutual,  when  only,  §  1580. 

Consent  not  free  not  absolutely  void,  §  1566. 

Consent  not  free,  rescission,  §  1566. 

Consent  obtained  by  duress,  §  1567. 

Consent  obtained  by  fraud,  §  1567. 

Consent  obtained  by  menace,  §  1567. 

Consent  obtained  by  mistake,   §  1567. 

Consent  obtained  by  undue  influence,  §  1567. 

Consent,  ratification  of  contract  void  for  want  of, 
§  1588. 

Consent,  voluntary  acceptance  of  benefits  of  transac- 
tion,  §   1589. 

Consent,  when  deemed  fully  communicated,  §  1583. 

Elements  essential  to,  §  1550. 

Ratification  of,  when  void  for  want  of  consent,  §  1588. 

Revocation  of  offer,  right  of,  §  1586. 

Revocation  of  proposal  by  death,  §  1587. 

Revocation  of  proposal  made,  how,   §  1587. 

Revocation  of  proposal,  time  for,  §  1586. 

Waiver  of  code  provisions  respecting,  §  3268. 

IV.  Consideration. 

Acceptance  of  is  acceptance  of  proposal,  §  1584. 

Ascertained,   how,   §   1611. 

Burden  of  proof  to  invalidate,  §  1615. 


830  CONTRACTS,  IV,  V,  VI. 

Effect  of  impossibility  of  ascertaining,  §§  1612,  1613. 

Effect  of  its  illegality  in  part,  §  1608. 

Essential,  §  1550. 

Exclusive  method  of  ascertaining  which  is  impossible, 

§§  1612,  1613. 
Executed,  §  1609. 
Executory,  §  1610. 
Good,  defined,  §  1605. 
Good,  what  is,  §  1606. 
Illegal  in  part,  §  1598. 
Moral  obligation  as,  §  1606. 
Must  be  lawful,   §   1607. 
Rescission  for  failure  of,  §  1689. 
Written  instrument  presumptive  of,  §  1614. 

V.  Execution  and  delivery;   reduction  to  writing;  seal; 

when  takes  effect. 
Delivery  of,  takes  effect  on,  §  1626. 
Delivery,  provisions  of  chapter  on  transfers  apply  to, 

§   1627. 
Oral  negotiations  merged  in  writing,  §  1625. 
Seal,   distinctions  abolished,   §   1629. 
Seal,  how  affixed,  §  1628. 
Takes  effect  on  delivery,  §  1626. 

Writing  supersedes  oral  negotiations  or  stipulations, 
§  1625. 

VI.  Validity  of;    object  of  contracts. 

Condition  precedent  requiring  performance  of  wrong- 
ful act,  effect  on,  §  709. 

Consent,  effect  of  fraud,  mistake,  duress,  etc.,  §  1567. 

Consent,  when  deemed  obtained  by  fraud,  duress,  mis- 
take, etc.,  1568. 

Damages,  contract  fixing,  §§  1670,  1671. 

Duress  consists  in  what,  §  1569. 

Fraud,  actual,  a  question  of  fact,  §  1574. 

Fraud,  actual,  what  constitutes,  §  1572. 

Fraud,  constructive,   defined,   §  1573. 

Fraud,  effect  of  on  oral  contract  not  in  writing  through 
fraud,  §  1623. 

Fraud  is  actual  or  constructive,  §  1571. 

Impossibility  avoids  contract,   §   1598. 

Impossibility,  object  must  be  possible  and  ascertain- 
able, §§  1596,  1598. 


CONTRACTS,  VI,  VII.  831 

Impossibility  is  what,  §  1597. 

Impossibility,  what  deemed  to  be  possible,  §  1597. 

Lawful,  unlawful  in  part,  effect  of,  §  1599. 

Liquidated  damages,  §§  1670,  1671. 

Menace  consists  in  what,   §   1570. 

Mistake  may  be  of  fact  or  law,  §  1576. 

Mistake  of  fact,  what  is,   §   1577. 

Mistake  of  foreign  law  is  mistake  of  fact,  §  1579, 

Mistake  of  law,  what  is,  §  1578. 

Object  of,  is  what,  §  1595. 

Object  of,  to  be  lawful  and  possible,  §  1596. 

Object  lawful,  essential,  §  1550. 

Object  of,  must  be  lawful,   §§   1596,  1598,  1599. 

Object  of,  must  be  ascertainable,  §§  1596,  1598. 

Object  of,  must  be  possible,  §§  1596,  1598. 

Parties,  identification  of  necessary,  §  1558. 

Public  policy,  contracts  against,  §§  1667,  1668. 

Restraint  of  marriage,  in,  void,  §  1676.  • 

Undue  influence  defined,  §  1575. 

Unlawful,  guarantor  not  liable  if  contract  is,  §  2810. 

Unlawful  in  part,  effect  of,  §  1599. 

Unlawful,  when,  §§  1667,  1668. 

Void,   because    unlawful,    impossible,    unascertainable, 
§§  1598,  1599. 

Void,  contract  fixing  damages,  effect  of,  §§  1670,  1671. 

Void,  contract  to  relieve  directors  or  trustees  from  lia- 
bility.  §   327. 

Void  in  part,  §  1599. 

Void,    as   to    principal,    liability   of   guarantor   where 
contract  is,  §  2810. 
VII.     Construction  of. 

Conflict  of  laws,  law  governing,  §  1646. 

Construed  against  promisor,  §  1654. 

Effect  to  be  given  to  every  part,  §  1641. 

Erroneous  parts  disregarded,  when,  §  1640. 

Explaining  by  circumstances,  §  1647. 

Explaining  by  matter  to  which  it  relates,  §  1647. 

Failure  to  express  real  intention  through  fraud,  acci- 
dent or  mistake,  §  1640. 

Giving  effect  preferred,  §  3541. 

Implied,  necessary  incidents  are,  §  1656. 


882  CONTRACTS,  VII,  VIII. 

Implied,  reasonable  stipulations  may  be,  §  1655. 
Inconsistent  words  rejected,  §  1653. 
In  favor  of  contract,   §  1643. 
In  general,  §  1636. 

In  sense  promisor  believed  promisee  relied,  §  1649. 
Intention   ascertained   from   language,    §    1638. 
Intention  ascertained  from  writing,  §  1639. 
Intention,  giving  effect  to,  §   1636. 
Intention,  rules  for  ascertaining,  §  1637. 
Interpreted  to  give  effect  to  mutual  intent,  §  1636. 
Joint  and  several,  when  is,  §  1659. 
Language  to  govern,  §  1638. 
Law  governing,  §  1646. 
Law  of  place,  §  1646. 

Particular  clause,  subordinate  to  general  intent,  §  1650. 
Partly  printed,  partly  written  contract,  §  1651. 
Printing  and  writing,  conflict  between,  §  1651. 
'Reasonable,  must  be,  §  3542. 
Repugnances  reconciled,  bow,  §  1652. 
Repugnancy   between   original   part   and   copied   part, 

§  1651. 
Restricting  to  evident  object,  §  1648. 
Several  contracts  taken  together,  when,  §  1642. 
Technical  words,  §§  1644,  1645. 
Time  of  performance,  §  1657. 
Uncertainty  most  strongly  against  whom,  §  1654. 
Uncertainty  presumed  caused  by  whom,  §  1654. 
Uniformity  of,  whether  public  or  private,  §  1635. 
Whole  contract  to  be  taken  together,  §  1641. 
Words  having  special  meaning  by  usage,  §  1644. 
Words  in  usual  sense,  §  '1644. 
Writing  disregarded,  when,  §  1640. 
VIII.     Performance. 
1.  Generally. 
Application  of  general,  §  1479. 
Condition  concurrent,  §  1498. 
Condition  precedent,  §  1498. 
Condition  precedent,  when  necessary,  §  1439. 
In  mode  directed  by  creditor,  sufficient,  §  1476. 
Offer  of  performance  stops  interest,   §   1504. 
Payment,  when  called,  §  1478. 


CONTRACTS,    VIII.  833 

Performance  of  conditions  of  proposal,  on  acceptance, 
§   1584. 

2.  Time  of. 
Time  of,   §  1657. 
Essence  of  contract,  §  1492. 
Holiday,  when  time  for  falls  on,  §  11. 

3.  Excuse,  -prevention  or  waiver  of. 
Act  of  God  excuses  performance,  §  1511. 
Excused  how,  §  1511. 

Excused  when,  §§  1440,  1473. 
Prevention,  effect  of,  §§  1512,  1514. 
Refusal  to  accept,  before  offer,  §  1515. 
Waiver  of  demand  of  performance  by  refusal  to  per- 
form, §  3004. 

4.  Offer  of. 

Ability  and  willingness,  when  equivalent  to,  §  3130. 

Compensation  for  delay,  with,  §  1492. 

Concurrent  conditions,  of,  when  necessary,  §  1439. 

Effect  of,  on  accessories  of  obligation,  §  1504. 

Exonerates  surety,  by  any  person,  §  2839. 

Extinguishes  obligation,  §  1485. 

Extinguishes  obligations  for  payment  of  money,  when, 

§  1500. 
Good  faith,  to  be  in,  §  1493. 
Lien  redeemed  by,  §  2905-. 
Objections  to  mode,  when  waived,  §  1501. 
Partial,   §§   1486,   1524. 

Party  must  be  able  and  willing  to  perform,  §  1495. 
Passes    title    to    personal    property    under    executory 

agreement  of  sale,   §  1141. 
Produced,  thing  offered  need  not  be,  §  1496. 
Receipt  may  be  required  upon,  §  1499. 
Refusal  to  accept  performance  before,  §  1515. 
Separate,  thing  offered  to  be  kept,  §  1497. 
Unconditional,  must  be,  §  1494. 
Vests  in  creditor,  thing  offered,  §§  1502,  1503. 
What  excuses,  §  1511. 
When  excused,  §  1440. 
When  made,   §§   1490,  1491. 
Where  made,  §§  1488,  1489. 
Whom  made  by,  §  1487. 
Whom   made  to,   §   1488. 


•84  CONTRACTS,   VIII,    IX,    X— CONTRIDUTION. 

5.  Fartial. 
Effect  of,   §   1477. 

Extinguishes  obligation  when,  §  1524. 
Guarantor,  effect  on,  of  principal's  accepting,  §  2822. 
Lien,    does   not   extinguish,    §    2912. 
Makes  oral  contract  of  sale  valid,  §  1741. 
Offer  of,  §  1486. 
IX.     Alteration;   cancellation;    release;    extinction. 
Alteration  of  duplicate,  §  1701. 
Alteration  of  verbal,  consideration,  §  1697. 
Alteration  of  written,  §  1698. 

Alteration,    unauthorized,    extinction    by,    §    1700. 
Alteration  of:     See  Alteration.  ^'' 

Cancellation,  extinction  by,  §  1699. 
Cancellation  of  instruments,   §§  3412-3414. 
Cancellation  of:      See  Cancellation. 
Destruction,  extinction  by,  §  1699. 
Extinguished,  how,  §  1682. 
Extinction  by  alteration,  §  1700. 
Extinction  by  cancellation,  §§  1699,  1700. 
Release  of  obligation,  §§  1541-1543. 
X.     Actions  on;   liability  under. 

Assuming  obligation  by  accepting  benefits,  §  1589. 
Benefit,  one  taking,  must  bear  burden,  §  3521. 
Damages,  measure  of,  for  breach  of,  §  3300. 
Damages,  measure  of,  for  breach  of  contract  to  pay 

liquidated  sum,  §  3302. 
Damages  must  be  certain,  §  3301. 
Damages,  nominal,  when  recoverable,  §  3360. 
Damages,,  reasonable,  only  recoverable,  §  3359. 
Damages:     See  Damages. 
Proof  of  execution   of  instrument  not  acknowledged, 

how  made,  §  1195. 
Proof  of  instrument:      See  Instrument. 
Relief,  specific  and  preventive,   §  3274. 
Third  person,  enforcing  contract  for  benefit  of,  §  1559. 
CONTRIBUTION:      See  Suretyship. 

Between  joint  or  joint  and  several  obligors,  §  1432. 
General  average  loss,  to,  §  2152. 
Insurance  cases,  in,  §§  2621,  2622,  2642,  2745. 
Release  of  joint  debtor  rs  affecting  right  to,  §  1543. 
Surety's  right  to,   §   28i^. 


CONTRIBUTORY  NEGLIGENCE — CONVEYANCE.  835 

CONTRIBUTORY    NEGLIGENCE:      See  Negligence. 
CONTROLLER  OF  STATE,  corporation  to  transmit  selec- 
tion of  right  of  way  to,  §  478. 

Duty  where  property  escheats  to  state,  §  1406. 
CONVERSION,  damages  for,  §§  3336,  3337,  3338. 

Equitable,  when  takes  place,  §  1338. 

In  general,   §§  1712,  1713. 

Lien  extinguished  by,  §  2910. 

One  guilty  of,  must  restore  property,  §  1712. 

Restoration  to  be  without  demand  except  in  cases  of 
mistake,  §  1713. 

CONVEYANCE:      See  Deeds;    Transfers. 
After-acquired  title  passes,  §  1106. 
Agent  may  give  covenant  of  warranty,  §  2324. 
Agreement  to  convey,  covenants,  §§  1733,  1734. 
Agreement  to  convey,  effect  of,  §  1731. 
Agreement  to  convey,  specific  performance,   §  1741. 
Agreement  to  convey,  statute  of  frauds,   §  1741. 
Attorney  in  fact,  how  to  execute,  §  1095. 
Bona  fide  purchaser  or  incumbrancer,  rights  of  subse- 
quent, §  1107. 
Cancellation  of  grant  does  not  retransfer  title,  §  1058. 
Cancellation  of  instruments,  in  general,   §§  3412-3414. 
Certificate  of  proof  of  execution,  what  to  state,  §  1200, 
Changed  names,   by  persons   with,    §   1096. 
Community,  wife's  consent,  §  172. 

Conclusive,  as  to  parties  and  privies,  how  far,  §  1107. 
Condition  precedent,  grant  on,   effect  of,   §   1110. 
Conditions  subsequent,  reconveyance  on  non-perform- 
ance, §  1109. 
Conditions  in:      See  Conditions. 
Constructive  delivery,  §  1059. 
Covenants,  agent's  authority  to  give,  §  2324. 
Covenants,  agreement  to  give,  §  1733. 
Covenants,  form  of,  §  1734. 
Covenants  implied,  §  1113. 
Covenants  running  with  land,   §§   1460-1468. 
Covenants,  who  bound  by,  and  who  not,  §§  1465,  1466. 
Damages  for  breach  of  agreement  to  buy,  §  3307. 
Damages  for  breach  of  agreement  to  convey,  §  3306. 
Damages  for  breach  of  covenants,  §  3304. 


8S6  CONVEYANCE. 

Damages  for  breach  of  covenant  against  incumbrances, 

§  3305. 
Date  of  delivery,  presumption  as  to,  §  1055. 
Deemed  mortgage,  when,  §   2924. 
Defined,  §  1215. 

Delivery  constructive,  when,  §  1059. 
Delivery,  date  of,  presumption  as  to,  §  1055. 
Delivery  in  escrow,  §  1057. 
Delivery  must  be  absolute,  §  1056. 
Delivery  necessary,  §  1054. 
Delivery  to   grantee  or   agent  cannot  be   conditional, 

§  1056. 
Easements  pass  with,   §  1104. 
Incumbrance  includes  what,   §  1114. 
Escrow,  definition,  §  1057. 
Escrow,  delivery  in,  §  1057. 
Executed  before  code,  §§  1205,  1206. 
Execution   of,    how    proved    when   not   acknowledged, 

§  1195. 
Execution  may  be  proved  by  handwriting  when,  §  1198. 
Fee  presumed  to  pass,   §  1105. 
Fee,  words  of  inheritance  unnecessary  to,  §  1072. 
Form  of,  §  1092. 
Fraudulent,  §§  1227-1231. 
Fraudulent:      See  Fraudulent  Conveyance. 
Grant  includes  what,  §  1053. 

"Grant,"  covenants  implied  from  use  of  word,  §  1113. 
Heirs,  and  issue,  interpretation  of,  §  1071. 
Heir's  conveyance  good,  unless  will  proved  or  notice 

of  devise  filed  within  four  years,  §  1364. 
Highway,  transfer  bounded  by,  passes  what,  §  1112. 
Homestead  conveyed,  how,  §  1242. 
Incidents  follow  thing  transferred,  §  1084. 
Incidents,  transfer  of,  does  not  pass  principal  thing, 

§   1084. 
Infant's,  §  33. 

Inheritance,  words  of,  not  necessary,  §  1072. 
Interest  subsequently  acquired  passes  by  operation  of 

law,  §  1106. 
Interpretation  against  grantor,  §  1069. 
Interpretation,   grant   by   public   in   favor   of   grantor, 

§   1069. 


CONVEYANCE.  837 

Interpretation  of  heirs  and  issue,  §  1071. 

Interpretation  of,  in  general,  §  1066. 

Interpretation  of,  irreconcilable  provisions,  §  1070. 

Interpretation  of  limitations,  §  1067. 

Interpretation,  recourse  to  recitals,  §  1068. 

Interpretation,  reservation,  in  favor  of  grantor,  §  1069. 

Irreconcilable  provisions,  interpretation,  §  1070. 

Issue  and  heirs,  interpretation  of,  §  1071. 

Judgment  proving  instrument,   §   1204. 

Lien  for  unpaid  price,  vendor  has,  §  3046. 

Lien  of  vendee,  §  3050. 

Lien  of  vendor,  §§  3046-3048. 

Lien  of  vendor,  against  whom  valid,  §  3048. 

Lien  of  vendor,  transfer  of  contract  waives,  §  3047. 

Limitation  in,  how  controlled,  §  1067. 

Married  woman's  acknowledged,  how,  §  1093. 

Married  woman's  power  of  attorney  acknowledged  how, 

§  1094. 
Mining  property,  sale  of,  p.  752,  Stats. 
Mortgage,  transfer  deemed  a,   §  2924. 
Operation  of  law,  by,  §  1091. 
Operation  of  law,  subsequently  acquired  title  passes 

by,  §  1106. 
Owner  for  life,  by,  §  1108. 
Owner  for  years,  by,  §  1108. 
Power  of  attorney  by  married  woman,  §  1094. 
Proof  of,  action  for,  and  effect  of  the  judgment,  §§  1203, 

1204. 
Proof  of  execution,  certificate  of,  §  1200. 
Recitals  resorted  to  in  interpretation,  when,  §  1068. 
Reconvey,  surrendering  or  canceling  grant  does  not, 

§  1058. 
Record  as  notice,  §  1213. 
Record  as  notice,  curative  act,  §  1207. 
Recording:      See  Recording. 
Re-delivery  does  not  re-transfer  title,  §  1058. 
Remainders,  of,  attornment,  §  1111. 
Rents,  of,  attornment,  §  1111. 
Requisites  of,  §  1091. 

Reservation  interpreted  in  favor  of  grantor,  §  1069. 
Reserving  power  of  revocation,  §§  1229,  1230. 
Reversions,  of,  attornment,  §  1111. 


838  CONVEYANCE— CORPORATIONS. 

Revocation,  reserving  power  of,  §§  1229,  1230. 

Statute  of  frauds,  §§  1091,  1624. 

Stranger,  grant  may  inure  to,  §  1085. 

Subscribing  witnesses,  manner  of  proving,  by,  §§  1196- 
1199. 

Title,   what  passes,   §   1083. 

Unrecorded,  good  between  parties,  §  1216. 

Unrecorded,  void  as  to  whom,  §  1214. 

Warranties,  liability  on,  §  1115. 

Warranties,  lineal  and  collateral  abolished,   §  1115. 

Warranty,  agent  may  give  covenant  of,  §  2324. 

What  law  governs  where  made  before  code,  §§  1205, 
1206. 

Will,  effect  on,  §§  1301,  1303,  1304. 

Words  of  inheritance  not  necessary,  §  1072. 

Writing,  what  transfers  to  be  in,  §  1091. 
See  Deeds;  Transfers. 
CO-OPERATIVE  ASSOCIATION:     See  Associations;  Bene- 
fit Societies;    Boards  of  Trade;    Mechanics'   In- 
stitutes;   Pioneer    Society;    Protective    Associa- 
tions. 

Act  providing  for  incorporations,  operation  and  man- 
agement of,  p.  694. 

Benefit  and  relief  associations,  act  relating  to,  p.  678, 
Stats. 

Building  and  loan  associations,  act  governing,  p.  681. 
CORPORATIONS. 

I.     Definitions;   nature  and  kinds  of. 
II.     Effect  of  code   on;    continuance   under;    amend- 
ment or  repeal  of  law. 

III.  Formation  and  organization;    name  of. 

IV.  Articles  of  incorporation. 

V.     Term  of  existence,  extension  of. 
VI.     By-laws. 
VII.     Directors. 

VIII.     Officers  other  than   directors;   employees. 
IX.     Elections. 
X.     Meetings. 

XI.     Records,  books  and  journals. 

XII.  Powers;  contracts;  changing  residence;  bonded 
debt;  transferring  business,  property  or  fran- 
chises. 


CORPORATIONS.  839 

XIII.  Stock  and  stockholders;   personal   liability. 

XIV.  Dividends. 
XV.     Assessments. 

XVI.     Actions  against;   sale  of  franchise  under  execu- 
tion. 
XVII.     Dissolution;    non-user;    examining    into    affairs; 

attack  upon. 
XVIII.     Foreign. 

Agricultural  fair  corporations:     See  Agricultural  Fair 
Corporations. 

Associations:     See  Asociations. 

Banking:    See  Banking  Corporations. 

Benefit  societies:     See  Benefit  Societies. 

Benevolent:     See  Religious  and  Social  Corporations. 

Boards  of  trade:     See  Boards  of  Trade. 

Bridge:      See  Bridge,  Ferry,   Wharf,   Chute   and   Pier 
Corporations. 

Building  and  loan:      See  Building  and  Loan  Corpora- 
tion. 

Cemetery:      See   Cemetery   Corporation. 

Chambers  of  commerce:     See  Chambers  of  Commerce. 

Chute:      See  Bridge,   Ferry,  Wharf,   Chute   and   Pier 
Corporations. 

Colleges:     See  Colleges. 

Co-operative  associations:     See  Co-operative  Associa- 
tions. 

Corporation    sole:      See   Corporation    Sole. 

Ferry:      See   Bridge,    Ferry,   Wharf,    Chute   and   Pier 
Corporations. 

Fraternal:     See  Religious,  Social  and  Benevolent  Cor- 
porations. 

Friendly:      See  Friendly   Society. 

Homestead:      See   Homestead   Corporation. 

Insurance:      See  Insurance  Corporation. 

Irrigation:     See  Water  and  Canal  Corporations. 

Land  and  building:     See  Building  and  Loan  Corpora- 
tion. 

Mechanics'  institutes:     See  Mechanics'  Institutes. 

Mining  corporations:      See   Mines   and   Mining. 

Pier:      See    Bridge,    Ferry,    Wharf,    Chute    and    Pier 
Pier  Corporations. 

Pioneer  associations:     See  Pioneer  Associations. 


•40  CORPORATIONS,  I,  II,  III. 

Profit,  associations  for  purposes  other  than:  See  Re- 
ligious, Social  and  Benevolent  Corporations. 

Protective  associations:      See  Protective  Associations. 

Railroad:  See  Railroad  Corporations;  Street  Railv^ay 
Corporations. 

Religious,  etc.:  See  Religious,  Social  and  Benevolent 
Corporations. 

Savings  and  loan:    See  Savings  and  Loan  Corporations. 

Social:  See  Religious,  Social,  and  Benevolent  Cor- 
porations. 

Street  railway:     See  Street  Railway  Corporations. 

Telegraph:     See  Telegraph  Corporation. 

Telephone:     See  Telephone  Corporation. 

Wagon  road:     See  Wagon  Road  Corporations. 

Water  and  canal:     See  Water  and  Canal  Corporations. 

Wharf:  See  Bridge,  Ferry,  Wharf,  Chute  and  Pier 
Corporations. 

I.  Definitions;   nature  and  kinds  of. 
A  person,  §  14. 

Classes  of,  §  284. 

Defined,  §  283. 

Definitions,  public  and  private,  §  284. 

"Person"  includes  corporation,  §  14. 

Private,  defined,  §  284. 

Public,  defined,  §  284. 

Public  and  private,  distinguished,  §  284. 

Purposes,  may  be  formed  for  any,  §  286. 

II.  Effect  of  code  on;  continuance  under;  amendment  or 

repeal  of  law. 
Amendment  or  dissolution  of  laws,  effect  on  rights  and 

remedies  against,  §  384. 
Code  provisions,  to  what  corporations  apply,  §  403. 
Continuance  under  code,  proceedings  for,  §  287. 
Existing,  not  affected  by  code,   §   288. 
Legislature   may   repeal   or   amend   laws   relating   to, 

§   384. 
Provisions  of  code,  to  what  corporations  apply,  §  403. 

III.  Formation  and  organization;   name  of. 
Formation  complete,  when,  §  296. 
Formed  for  any  purpose,   §  286. 
Formed  how,  §  285. 


CORPORATIONS,    III,    IV.  841 

Formation,  majority  of  persons  forming  to  be  residents, 
§  285. 

Name,  change  of,  copy  of  decree  to  be  filed  with  secre- 
tary of  state,  §  300a. 

Name,  prohibitions  in  regard  to,  §  296. 

Name  of  instrument  creating,  §  289. 

Organization  to  be  within  one  year,  §  358. 
IV.     Articles  of  incorporation. 

Amending,  right  of,  §  362. 

Amending  articles  or  certificate  of  incorporation,   ef- 
fect of,  §  362. 

Amending  articles  or  certificate  of  incorporation,  limi- 
tations on,   §   362. 

Amending  articles  or  certificate  of  incorporation,  mode 
of,  §  362. 

Amendment,  defects  in  articles   cannot  be   cured  by, 
§  362. 

Amendment  of  articles,  capital  stock  cannot  be  dimin- 
ished by,  §  362. 

Certificate  that  articles  are  filed,  §  296. 

Certified  copy  of,  prima  facie  evidence,  §  297. 

Copy  to  be  filed  in  county  where  property  purchased 
or  held,  §  299. 

Filed,  time  within  which  to  be,  §  299. 

Filing,  amount  required  to  be  paid  in,  §  293. 

Filing,  damages  for  failure  to  file  copy  of  In  county 
where  property  held,  §  299. 

Filing  in  wrong  county,  effect  of,  §  363. 

Filing  in  wrong,  proceedings  for  withdrawal  and  re- 
filing in  proper  county,  §  363. 

Filing,  prerequisites  to,  §§  293,  294. 

Qualifications  of  signers,  §  292. 

Filing,  to  be  filed  with  county  clerk  and  secretary  of 
state,  §  296. 

Instrument  creating  called,  §  289. 

Not  to  issue  until  aflldavit  of  subscription  filed,  §  295. 

Number  of  subscribers,  §  292. 

Stock  subscribed,  articles  to  set  forth  amount  of,  §  290, 

Subscription,  amount  of,  as  prerequisite  to  filing  ar- 
ticles, §  293. 

Subscription  and  acknowledgment  of,  §  292. 

To  contain  what,  §§  290,  291. 
Civ.  Code — 36 


842  CORPORATIONS,   V,   VI,   VII. 

V.  Term  of  existence;  extension  of. 

Extension  of  existence,  filing  certificate  of,  §  401. 
Extension  of  existence,  limited  to  fifty  years,  §  ^01. 
Extension  of  existence,  how  effected,  S  401. 
Term  of  existence,  §  290. 

VI.  By-laws. 
Amended  how,  §  304. 

Book  of,  to  be  ojpen  to  inspection,  §  304. 
Delegating  power  relating  to,  to  directors,  §  304. 
How  adopted  and  by  whom,  §  301. 
May  provide  for  what,  §  303. 
.   New,  adopting  of,  §  304. 
Penalty  for  violating,  §  303. 
Proceedings  for  adoption  of,  §  301. 
Quorum  of  stockholders,  by-laws  may  provide  for,  §  303. 
Recording,  §  304. 
Recorded  how,  §   304. 
Repealed  how,  §  304. 
Time  for  adoption  of,  §  301. 
To  be  certified,  §  304. 

To  be  certified  and  copied  in  book  of  records  before 
effective,  §  304. 

VII.  Directors. 

Contracts  to  relieve  from  liability,  void,  §  327. 

Election  of  new,  on  removal  of  old,  §  310. 

From  whom  chosen,  §  305. 

Inhibitions  on,  §  309. 

Majority  a  quorum,  §  308. 

Majority  of  quorum  control,  §  308. 

Majority  must  be  citizens  of  state,  §  305. 

May  be  removed  by  two-thirds  vote,  §  310. 

Must  perform  duties,   §   308. 

Number  of,  §§  290,  305. 

Organization  of  board  of,    308. 

Personal  liability,  §  309. 

Personal  liability,  limitation  of  actions  on,  §  309. 

Quorum  necessary  to  transact  business,  §  305. 

Removal  from  office,  proceedings  for,  §  310. 

To  be  stockholders  or  members,  §  305. 

Trustees,  contract  to  relieve  from  liability  void,  §  327. 

Vacancy  filled  how,   §  305.. 

Who  may  be,  §  305. 


CORPORATIONS,   VIII,    IX,    X.  843 

VIII.  Officers  other  than  directors;   employees. 

False  certificates,  reports,  or  notices,  officers  liable  for, 

§  316. 
Frauds  and  misrepresentations  by  officers,  penalty  for, 

p.  695,  Stats.  1877-8. 
Vacancies  may  be  filled  at  meetings  called  by  consent, 

§  318. 
Wages,  assignment  by  employee,  act  relating  to,  p.  700. 
Wages,  manner  of  payment  of,  p.  700,  Stats. 
Wages  of  laborers  and  mecnanics,  act  providing  for, 

§  699. 

IX.  Elections. 
Adjournment  of,  §  314. 

By-laws  may  prescribe  rules  of,  §  303. 

Complaints  respecting  and  proceedings  thereon,  §  315. 

Conduct  of,  §  307. 

Cumulative  voting,  §  307. 

Cumulative  voting,   election  void   if  right  of,   denied, 

§  307. 
Cumulative   voting,   provisions    apply   to   corporations 

formed  outside  of  state,  §  307. 
Eligibility  of  voters,  §  312. 
Lunatic's  stock  represented  how,  §  313. 
Majority  of  stock,  what  constitutes  where  stock  held 

by  corporation,  §  344. 
Majority  of  subscribed  capital  stock  or  members  to  be 

represented,  §  312. 
Minor's  stock  represented  how,  §  313. 
New  directors,  election  of  on  removal  of  old,  §  310. 
Not  held  at  appointed  time,  calling  another,  §§  312,  314. 
Notice  of,  §  302. 

Stock  of  decedent  represented  by  executor,  §  313. 
Time  for,  where  no  provision  in  by-laws,   §  302. 
Voidable  when  and  how  set  aside,  §  312. 
Votes  avoided  how,  §  312. 
Voting,  manner  of,  §  307. 

Voting,  manner  of  v/here  no  capital  stock,  §  607. 
Voting  may  be  by  proxy  or  in  person,  §  307. 
Who  may  vote,  §  312. 

X.  Meetings. 
Adjournment  of,  §  312. 


814  CORPORATIONS.    X,    XI,    XII, 

Application  to  justice  of  peace  to  call,  §  311. 

Ayes  and  noes  to  be  taken  and  entered  on  request, 
§  377. 

By  consent  is  valid,  §  317. 

By  consent,  what  proceedings  may  be  transacted,  §  318. 

By-laws  may  provide  for,  §  303. 

Justice  of  peace  may  direct  calling,  when,  §  311. 

Notice  of  meetings  to  be  published  in  what  papars, 
§   303. 

Notice  of  meeting  to  create  or  increase  bonded  indebt- 
edness, §  359. 

Notice  of  meeting  to  increase  or  diminish  capital  stock, 
§  359. 

Notice  of  meeting  to  remove  directors,  §  310. 

Protests  of  members  to  be  entered  on  request,  §  377. 

Special,  when  and  how  called  where  no  provision  in 
by-laws,  §  320. 

To  be  held  ..here,  §  319. 

Where  all  members  present  and  consent,  §  317. 

XI.  Records,   books  and  journals. 

Book,  stock  and  transfer,  how  kept,  §  378. 

Book  of  directors  and  stockholders,  keeping  for  in- 
spection, §  321. 

Journal  of  proceedings,  what  and  how  kept,  §  377. 

Record  of  ayes  and  noes  and  protests  to  be  entered  on 
request,  §  377. 

Records,  of  what  and  how  kept,  §  377. 

Records,  stock  and  transfer  book,  how  kept,  §  378. 

Records  to  be  open  for  inspection,  §§  377,  378. 

XII.  Powers;    contracts;    changing    residence;     bonded 

debt;  transferring  business,  property  or  fran- 
chises. 

Acknowledgment  by,  prerequisites  to  taking,  §  1185. 

Act  authorizing  corporation  to  own  business  house, 
p.  710. 

Bequests  to,  restrictions  on  power  to  make,  §  1313. 

Bonded  indebtedness,  proceedings  to  create  or  in- 
crease, §  359. 

Bonds,  corporations  for  giving,  act  relating  to,  p.  680. 

Bonds,  restrictions  upon  issue  of,  §  359. 

Business  or  property,  transfer  of  as  a  whole,  consent 
of  two  thirds  of  stockholders,  §  361a. 


CORPORATIONS,   XII.  845 

Business  or  property,  transfer  of  as  a  whole,  consent 
of  stockholders,  how  expressed,  §  361a. 

Change  of  principal  place  of  business,  corporation  has 
right  of,  §  321a. 

Change  of  principal  place  of,  proceedings  on,  §  321a. 

Change  of  principal  place  of  business,  filing  of  resolu- 
tion authorizing,  with  aflBdavit  of  publication  of 
notice,  §  321a. 

Consolidated  bonded  indebtedness  by  several  corpora- 
tions, creation  of,  §  359. 

Consolidated  bonded  indebtedness  by  several  corpora- 
tions, limitation  upon,  §  359. 

Consolidation  of  debts  by  corporations  other  than  for 
profit,  §  605, 

Debts  beyond  subscribed  capital  stock,  directors  must 
not  create,  §  309. 

Executor,  receiver,  trustee,  etc.,  act  authorizing  cor- 
poration to  act  as,  p.  702. 

Foreign  country,  sale  of  property,  franchises  or  conces- 
sions in,  §  364. 

Form  of  acknowledgment  by,  §  1190. 

Franchise,  transfer  of,  consent  of  stockholders  holding 
two  thirds  of  issued  capital  stock  necessary, 
§  361a. 

Franchise,  transfer  of,  consent  of  stockholders,  how 
expressed,   §   361a. 

Misnomer  of,  does  not  invalidate  instrument,  §  357. 

Powers  of,  banking  prohibited,   §   356. 

Powers  of,  enumeration  of,  §  354. 

Powers  of,  limitation  on,  §  355. 

Real  property,  corporation  may  acquire,  and  how  much, 
§  360. 

Real  property,  how  acquired,  §  360. 

Realty  on  which  business  carried  on,  how  acquired, 
§  363. 

Realty  on  which  business  carried  on,  right  to  acquire 
and  improve,   §   363. 

Sale  of  franchises,  concessions  or  property  in  foreign 
country,   §   364. 

Seal  affixed,  how,  §  1628. 

Will,  power  to  take,  under,  §  1275. 

Will,  whether  may  take  under,  §  1275. 


S46  CORPORATIONS.   XIII. 

XIII.     Stock  and  stockholders;  personal  liability. 

Capital  stock,  articles  to  set  forth  amount  of,  §  290. 
Capital  stock,  division  of,  among  stockholders,  §  309. 
Capital  stock,  increasing  and  diminishing,  manner  of, 

§  359. 
Capital  stock,  increasing  and  diminishing,  proceedings 

for,  §  359. 
Capital  stock,  reducing  or  increasing,  restrictions  on, 

§  309. 
Capital  stock,  cannot  be  diminished  by  amendment  of 

articles,  §  362. 
Capital  stock,  withdrawing,  restrictions  on,  §  309. 
Certificates,  false,  officers  liable  for,   §  316. 
Certificates  of  stock,  how  and  when  issued,   §  323. 
Married  woman,   dividends  payable   to,   §   325. 
Married  woman  may  give  proxy  or  power  as  if  sole, 

§  325. 
Married  woman,  transfer  of  stock  by,  §  325. 
Members  are  who,  §  298. 
Members,  personal  liability  of  where  no  capital  stock, 

§  322. 
Stock  and  transfer  book,  how  kept,  §  378. 
Stock  and  transfer  book  to  be  kept,  §  378. 
Stock,  diminishing,  proceedings  on,  §  359. 
Stock,  increase  of,  proceedings  on,  §  359. 
Stock,  majority,  what  is,  where  stock  is  held  by  cor- 
poration, §  344. 
Stock,  subscription  to,  affidavit  of,   §   295. 
Stockholders  are  who,  §§  298,  322. 
Stockholder,  guardian  or  trustee's  liability  as,  §  322. 
Stockholder,  married  woman  may  give  proxy  or  power 

as  if  sole,   §  325. 
Stockholders'  personal  liability,  creditor  may  institute 

joint  and  several  actions,  §  322. 
Stockholders'    personal    liability    does    not    extend    to 

what  persons,  §  322. 
Stockholders'   personal  liability  extends  to  what  per- 
sons, §  322. 
Stockholders'    personal    liability,    foreign    corporation, 

§   322. 
Stockholders'    personal    liability,   funds   in   guardian's 

hands,  liability  of,  §  322. 


CORPORATIONS,  XIII,  XIV,  XV.  847 

Stockholders'  personal  liability,  how  enforced,  §  322. 

Stockholders'  personal  liability,  in  general,   §  322. 

Stockholders'  personal  liability,  measure  of,   §   322. 

Stockholders'  personal  liability  not  released  by  trans- 
fer of  stock,  §  322. 

Stockholders'  personal  liability  released  on  payment 
of  his  proportion,  §  322. 

Stockholders'  personal  liability  released  when,  and 
when  not,   §  322. 

Stockholders'  personal  liability,  trust  fund's  liability 
for,  §  322. 

Stockholders'  personal  liability  when  a  guardian  or 
trustee,  §  322. 

Stockholders,  who  are,  §  322. 

Stockholders,  who  are  not,  §§  298,  322r. 

Tax  on  issue  of  certificates  of  stock,  act  providing  for 
repealed,  p.  774,  Stats. 

Transfer  of  shares  does  not  release  stockholder's  lia- 
bility, §  322. 

Transfer  of  shares,  manner  of,  §  324. 

Transfer  of  shares  of  married  woman,  §  325. 

Transfer  of  shares,  to  be  entered  on  books,  §  324. 

Transfer  of  stock  by  non-resident,  giving  bonds,  §  326. 

Transfer  of  stock  by  non-resident,  how  effected,  §  326. 

XIV.  Dividends. 

Not  to  be  declared  on  stock  belonging  to  the  corpora- 
tion, §  343. 
Payable  to  married  women,  §  325. 
To  be  made  only  from  surplus  profits,  §  309. 

XV.  Assessments. 

Action  to  recover  delinquent,  §  349. 

Directors  may  levy,  when  and  for  what,  §  331. 

Jurisdiction  to  sell  acquired  by  publication  of  notice, 

§  340. 
Limitation  on  power  of,  §  332. 
Notice  of  delinquent,  contents  of,  §  338. 
Notice  of  delinquent,  §  337. 
Notice  of  delinquent,  publication  of,  §  339. 
Notice  of,  form,  §§  335,  337. 
Notice  of,  service  and  publication  of,  §  336. 
Not  to  be  invalidated  by  what  irregularities,  §  346. 


848  CORPORATIONS,  XV,   XVI,   XVlI. 

Not  to  be  levied  upon  stock  owned  by  the  corporation, 
§  343. 

Not  to  be  levied  while  previous  one  unpaid,  unless» 
§   333. 

Order  for,  to  contain  what,  §  334. 

Payment  before  sale  da;^,  what  to  be  paid  in  addition 
to  assessment,  §  341. 

Proceedings  for,  to  be  begun  anew,  when,  §  346. 

Publication  of,  affidavits  to  be  filed,   §   348. 

Publication  of  notice,  affidavits  are  prima  facie  evi- 
dence, §  348. 

Publication  of  notice  proved,  how,  §  348. 

Sale,  action  to  recover  such  stock,  §  347. 

Sale,  action  to  recover,  tender  of  assessment,   §  347. 

Sale,  corporation  may  buy  in  default  of  bidders,  §343. 

Sale,  disposition  of  stock  bought  by  corporation,  §  344. 

Sale,  extension  of  time  for,  §  34i. 

Sale,  highest  bidder  is  purchaser,  §  342. 

Sale,  jurisdiction  acquired,  how,  §  340. 

Sale,  no  more  stock  than  necessary  to  be  sold,  §  340. 

Sale,  to  pay,  §§  340-349. 

Sale,  waiver  of,  and  suit  to  recover  assessment,  §  349. 

Sale,  to  be  by  public  auction,  §  341. 

Sale,  to  pay  transfer  of  stock  to  purchaser  when  sold 
to  pay  assessment,  §  342. 

XVI.  Actions  against;  sale  of  franchise  under  execution. 
Execution  sale  of  franchise,  corporation  retains  powers, 

§   391. 
Execution    sale   of   franchise,    damages,    recovery   by 

purchaser,   §  390. 
Execution   sale   of  franchise,   purchaser   may   recover 

penalties,  etc.,  §  390. 
Execution  sale  of  franchise,  purchaser,  rights  of,  §  390. 
Execution  sale  of  franchise,  purchaser  to  be  let  into 

possession,   §   389. 
Execution    sale    of    franchise,    purchaser    to    transact 

business  of  corporation,   §   389. 
Execution  sale  of  franchise,  where  held,  §  393. 
Franchise,  redemption  of,  from  execution  sale,  §  392. 

XVII.  Dissolution;     non-user;     examining     into    affairs; 

attack  upon. 
Attorney-general  examining  into,  powers  of,  §  382. 


CORPORATIONS,    XVII,    XVIII — COSTS.  849 

Attorney-general  may  examine  into,  when,  §  382. 

Collateral  attack,  not  open  to,  §  358. 

Collateral  attack  on,   §  358. 

Dissolution  by  legislature  does  not  affect  rights  and 

remedies  against,  §  384. 
Dissolution,    involuntary,    code    provisions    governing, 

§  399. 
Dissolution  of,  by  legislature,  and  its  effect,  §  384. 
Dissolution   of,    directors    trustees    for    creditors    and 

stockholders,  §  400. 
Dissolution,  power  of  directors,  §  400. 
Dissolution,    reservation   by   legislature    of   power   of, 

§  384. 
Dissolution,  voluntary,  code  provisions  governing,  §  399. 
District  attorney  examining  into,  powers  of,  §  382. 
District  attorney  may  examine  into,  when,  §  382. 
Examination  into,  by  legislature,  §  383. 
Examination    into    affairs    of,    by    attorney-general    or 

district   attorney,   §    382. 
Examination   into,   how   made   by  attorney-general   or 

district  attorney,  §  382. 
Non-user,  dissolution  for,  §  358. 

Non-user,   proceedings   to   be    instituted    by   attorney- 
general,  §  358. 
Non-user,  who  may  question  right  of  corporation,  §  358. 
Quo  warranto,   §  358. 
Trust  companies,  dissolution  and  winding  up  of,  p.  676, 

Stats. 

XVMI.     Foreign. 

Designation   of   person   upon   whom   process   may   be 

served,  p.  711  Stats. 
Fees  required  of,  p.  712,  Stats. 
Filing  of  articles  of  incorporation,  p.  712,  Stats. 
Provisions  as  to   cumulative  voting,  apply  to,    §   307. 
Railroad  companies  authorized  to  do  business  on  equal 

terms,  p.  764,  Stats. 
Stockholders'  personal  liability,  §  322. 

CORPORATION     SOLE,   religious   societies   may  become, 

when,   §   602. 
COSTS,  divorce,  of,   §   137. 

Homestead,  of  appraisement,  §  1259. 


860  COSTS-COVENANTS. 

Homestead,   of   proceedings   to   subject   to   creditors' 

demands,   §   1259. 
Indemnity  against,  §  2778. 
COTENANCY,  between  devisees,  §  1350. 
Between  husband  and  wife,  §  161. 

See  Tenancy  in  Common. 
COTERMINOUS    OWNER,    mutual    obligations   of,    S    841. 
Rights  to  lateral   support,   §   832. 
Rights  to  line  trees,  §  834. 
COUNTY,  articles  of  incorporation,  filing  in  wrong  county, 
effect  of,  and  proceedings  on,  §  363. 
County  fire  insurance  companies,  p.  732,  Stats. 
Marriage   settlement  to   be   recorded   in  what,   §   179. 
Mortgage    of    personal    property    to    be    recorded    in 

what,   §   2959. 
Mortgage  property  in  transit  deemed  located  in  what, 

§  2960. 
Property  of  common  carrier  deemed  to  be  in  what, 
§  2961. 
COUNTY  CLERK:     See  Clerk. 
COUNTY  RECORDER,  acknowledgment,  may  take,  §1181. 

See  Recording. 
COURT   COMMISSIONER,  acknowledgment,  may  take,   § 

1181. 
COVENANTS,  agent's  authority  to  give,  §  2324. 

Agreements  to  give,  usual,  includes  what  covenants, 

§§  1733,  1734. 
Apportionment  of,  §  1467. 
Damages  for  breach  of,  §  3304. 
See  Damages. 
Form  of,   §  1733. 

Implied  in  transfer  of  land,   §  1113. 
May  inure  to  stranger^  §  1085. 
Quiet  possession,  for,  in  hiring,  §§  1927,  1955. 
Running  with  land,  §§  1460-1468. 
Running   with   land,   covenants   for    direct   benefit  of 

property  run,  §  1462. 
Running  with  land,  defined,  §  1460. 
Running  with  land,  only  those  specified  in  code  run, 
§  1461. 


COVENANTS — CREDITOR.  851 

Running  with  land,  what  are  generally,  §  1460. 
Running  with  land,  what  covenants  run,  §  1463. 
Running  with  land,  what  run  when  assigns  are  named, 

§  1464. 
Running  with  land,  who  bound  by,  and  who  not,   §§ 

1465,    1466. 
Running  with  land,  who  not  liable  for  breach,  §  1466. 
CREDIT,  agent  accepting,  liable  as  principal,   §  2343. 
Agent,   to,   exonerates   principal,    §    2335. 
Auctioneer  not  to  give,  except,  §  2362. 
Factor  may  give,  except,  §  2368. 
Factor's  sales  on,  §  2028. 

Shipowner's,  master  may  borrow  on,   §   2374. 
Ship's  manager  cannot  borrow,  §  2389. 
CREDITOR:       See    Assignment    for     Creditors;     Credit; 

Debtor. 
Acceptance  by,  necessary  to  satisfaction,   §   1473. 
Acceptance  of  accord,  §  1523. 
Acceptance  of  part  performance,   §  1524. 
Appraisement  of  homestead  on  petition  of  judgment, 

§  1245. 
Application  of  performance  by,  §  1479. 
Avoid  act  of  debtor,  when,  only  can,  §  3441. 
Contracts  of  debtor  valid  against,  when,  §  3431. 
Debtor  may  prefer,  when,  §  3432. 
Definition  of,  §  3430. 

Effect  of  prevention  of  pei'formance  by,  §  1512. 
Effect  of  refusal  to  accept  performance,  §  1515. 
Gift  causa  mortis  treated  as  legacy,  when,  §  1153. 
Guarantor,  liable  to,  when,   §   2807. 
Guarantor    not    exonerated    by    discharge    of    debtor 

without  act  of,  §  2825. 
Guarantor  not  exonerated  by  mere  delay  of,  §  2823. 
Guarantor  not  exonerated  by  voidable  promise  of,   S 

2820. 
Guarantor,  when  exonerated,  §  2819. 
Guarantor,  when  partially  exonerated,   §   2822. 
Guarantor   with   indemnity,    when    not   exonerated,    § 

2824. 
Homestead,   when   to   pay   expenses   of  appraisement 

of,  §  1259. 
Lien  void  against,   when,   §   2913. 


852  CREDITOR. 

Marshaling  of  assets,  §  3433. 

Mortgage   of   personal   property,   when   void    against, 

§  2957. 
Mortgagor  of,  remedy  of,   §   2968. 
Novation,  how  made,  §  1531. 
Novation,  may  rescind,  when,   §  1534. 
Objections  to  offer  of  performance,  §  1501. 
Obligation  of,  as  to  thing  offered  which  he  refuses  to 

accept,   §   1505. 
Offer  of  performance  at  place  appointed  by,   §   1489. 
Offer  of  performance  so  as  to  benefit,  §  1493. 
Offer  of  performance  to,  §  1488. 
Order  of  resort  to  funds,  §  2899. 
Partner  cannot  make  assignment  for,   §   2430. 
Partner,  liability  of  after  dissolution  to,  §  2453. 
Partner,  special  may  be,   §   2491. 
Partner,  special  postponed  to  other,  §  2491. 
Performance  excused,  if  prevented  by,  §  1511. 
Performance  in  manner  directed  by,  §  1476. 
Perfoi'mance  to  one  of  several  joint,  §  1475, 
Preference  to,  in  insolvency,  void,  §  2496. 
Receipt  by,  §  1499. 
Relative  rights  of  creditors,  §  3433. 
Release  by,  §  1541. 
Release  by,  effect  of,  general,  §  1542. 
Special  partner,   when  liable,   as  general  partner,  to, 

§  2502. 
Surety  entitled  to  securities  held  by,  §  2849. 
Surety  exonerated   by  refusal  to   sue,   §   2845. 
Surety  exonerated  by  what  act  or  omission  of,  §  2840. 
Surety,  how  far  liable,   §  2838. 
Surety  may  enforce  remedies  of,  when,  §  2845. 
Surety's  securities,  entitled  to  benefit  of,  §  2854. 
Title  of  thing  offered  passes  to,  when,  §  1502. 
Transfer  for  benefit  of,  to  be  recorded,  §  1164. 
Transfer  of  debtor  void  against,  when,  §§  3439,  3440. 
Transfer  without  value  not  void,  §§  3442,  3449,  3466, 

3469. 
Trust,  absolute,  in  favor  of  subsequent,   §  869. 
Trust  fund,  how  far  liable  to,  §  859. 
Trusts  for  benefit  of,  §  857. 
Witness  to  will,  as,  §  1282. 


d 


CROPS — DAMAGES.  853 

CROPS,   lien   of  mortgage  on  continues   after   severance, 
§    2972. 

Mortgage  of,  §  2955. 

Tenant's  right  to  harvest,   §   819. 
CRUELTY,  apprenticeship  annulled  for,   §   276. 

Defined,  §  94. 

Divorce,  as  ground  for,  §§  92,  98,  146. 
CUBIC  AIR  LAW,  statute  relating  to,  p.  743. 
CUMULATIVE  voting,   §   307. 

CURATIVE    ACTS.     Act    curing   defective    execution    or 
acknowledgment  of  instrument,   §  1207;   p.  665, 
Stats. 
CURRENT  MONEY,  borrower  to  pay  in,  §  1913. 
CURTESY  not  allowed,  §  173. 
CUSTODY,  children  of  annulled  marriage,  §  85. 

Children  of,  rules  for  awarding,  §  246. 

Children  of:    See  Divorce;  Parent  and  Child. 

Thing  offered  in  performance  of  obligation,  §  1503. 

DAMAGES,   acknowledgments,   §   1201. 
After  suit  brought,   §   3283. 
Agent's  authority,  breach  of  warranty,  damages  for, 

§  3318. 
Animals,  for  injuries  to,  §  3340. 
Breach  of  agreement  to  buy  personalty,  for,  §  3311. 
Breach  of  agreement  to  buy  realty,  for,  §  3307. 
Breach  of  agreement  to  convey  realty,  for,  §   3306. 
Breach  of  agreement  to  pay  for  personalty  sold,  for, 

§   3310. 
Breach  of  agreement  to  sell  personalty,  for,  §§  3308, 

3309. 
Breach  of  covenant  against  incumbrances,  for,  §  3305. 
Breach  of  covenants  in  deed,  for,  §  3304. 
Breach  of  promise  of  marriage,  for,  §  3319. 
Breach  of  warranty  of  quality  for  special  purpose,  for, 

§  3314. 
Breach   of  warranty   of   quality   of  personalty,   for,   § 

3313. 
Breach  of  warranty  of  title  to  personalty,  for,  §  3312. 
Carrier  of  messages,  refusal  to  receive,  or  delay  in 

delivering,  §   2209. 


854  DAMAGES. 

Carrier's  delay,  for,  §  3317. 

Carrier's  obligation  to  deliver,  for  breach     of,  §  3316. 

Carrier's  obligation  to  receive,  for  breach  of,  §  3315. 

Certain,  must  be,  §  3301. 

Chose  in  action,  presumption  as  to  value  of,   §  3356, 

Compensation   defined,    §    3274. 

Contract   fixing,    §§    1670,    1671. 

Conversion,  for,   §§   3336-3338. 

Detriment  defined,   §   3282. 

Dishonor  of  foreign  bill,  for,  §§3234-3238,  3303. 

Dogs  killing  goats,  sheep  or  poultry,  liability  of  owner, 

§  3341. 
Duel,  injuries  inflicted  in,  §§  3347,  3348. 
Employing    materials    belonging    to    another,    for,    § 

1033. 
Exemplary,  damages  prescribed  in  code  are  exclusive 

of,  §  3357. 
Exemplary,  for  injury  to  animals,  §  3340. 
Exemplary,  infant's  liability  for,   §   41. 
Exemplary,  lunatic's  liability  for,  §  41. 
Exemplary,  when  recoverable,  in  general,  §  3294. 
Failure   to   quit  by   tenant  after  notice,   treble  rent, 

§    3345. 
Fire,  for  negligently  setting,  §  3346a. 
Forfeiture,  relief  in  cases  of,  §  3275. 
Future  injuries,  for,  §  3283. 
Gas,  refusal  to  furnish,  §  629. 
Guardian's  holding  over,  for,  §  335. 
Holding  over  by  tenant,  treble  rent,  §  3345. 
Holding  over,  for  willful,  §  335. 
Innkeeper,  for  failure  to  post  charges,   §  1863. 
Interest  as,  §§  3287-3290. 
Interest,    damages   prescribed   in   code   are   exclusive 

of,  §  3357. 
Interest  on,  §  3287. 
Killing  sheep  by  dogs,  for,  §  3341. 
Lienor's,  for  conversion,  §  3338. 
Limitation  on  amount  of,  §  3358. 
Liquidated,   §§  1670,  1671. 

Liquidated,  not  bar  to  specific  performance,  §  3389. 
Liquidated  sum,  for  breach  of  contract  to  pay,  §  3302- 
Market  value,  §§  3353,  3354. 


DAMAGES — DATE.  855 

Measure  of,  for  breach  of  contract,  §  3300. 

Measure  of,  for  breach  of  contract  to  pay  liquidated 

sum,  §  3302. 
Measure  of,  in  various  cases,  §§  3300-3341. 
Mortgagee's  liability  for  refusal  to  give  certificate  of 

discharge,   §   2941. 
Must  be  certain,  §  3301. 
Nominal,  when  recoverable,  §  3360. 
Obligations  not  arising  out  of  contract,  damages  for, 

§  3333. 
Penal,  §§  3344-3348. 

Railroad,  liability  for  refusing  to  provide  ticket,  §  490. 
Railroad,  overcharge  by,  §  489. 
Reasonable,  to  be,  §  3359. 
Relief,  in  general,  §  3274. 

Sales,  value  how  estimated,  §§  3353,  3354,  3355. 
Seduction,  for,   §  3339. 
Sheep  killed  by  dogs,  for,  §  3341. 
Specific  relief:     See  Specific  Relief. 
Telegraph  property,  damages  for  malicious  injury  to, 

§   538. 
Tenant  liable  for  treble  rent,  when,  §§  3344,  3345. 
Tenant's  failure  to  quit  after  notice,   treble  rent,   § 

3344. 
Thing  in  action,  presumption  as  to  value  of,   §  3356. 
Timber,  for  injury  to.  §  3346. 
Trees,  for  injury  to,  §  3346. 
Trust,  damages  for  breach  of,  §§  2237,  2238. 
Trustee's  holding  over,  for,  §  3335. 
Value,  how  estimated  in  favor  of  buyer,  §  3354. 
Value,  how  estimated  in  favor  of  seller,  §  3353. 
Value,  how  estimated  where  property  of  peculiar  value, 

§  3355. 
Value  of  thing  in  action,  §  3356. 
Who  entitled  to,  in  general,  §  3281. 
Written   instrument,    presumption   as   to    value   of,    S 

3356. 
Wrongful  occupation  of  realty,  for,  §  3334. 
Wrongs,  for,  generally,  §  3333. 

See  Specific  Relief. 
DATE,  delivery  of  deed,  presumption  as  to,  §  1055. 
Negotiable  instrument,  not  necessary  in,  §  3091. 


856  DAYS— DEBT. 

DAYS,  counted,  in  computing  time,  §  10. 

Business,  are  what,   §   9. 

Grace,  of,  not  allowed,  §  3181. 

Holidays,  are  what,  §§  7,  8. 
DEATH,  chose  in  action,  survival  of,  §  954. 

Devisee,  of,  before  testator,  §  1344. 

Devisee  or  legatee,  of,  before  testator,  §§  1310,  1343. 

Distribution   of   common   property   on,   of   husband,   S 
1402. 

Distribution  of  common  property  on,  of  wife,  §  1401. 

Effect  of  on  hiring,  §  1934. 

Employer  or  employee,  death  of,  §§  1996-1998. 

Execution  of  power,  where  one  of  persons  in  whom 
vested  dies,  §  860. 

Gift  in  view  of:    See  Gift. 

Heir  advanced  to,  of,  before  devisor,  §  1399. 

Husband  and  wife,  of,  effect  on,  homestead,  §  1265. 

Joint  employee,  death  of,  duty  of  survivor,   §   1991. 

Joint  guardian,  of,  §  252. 

Maker  of  instrument  bearing  nominal  date,  of,  §  3094. 

Marriage  dissolved  by,  §  90. 

Minor,  of,  representative  may  disaffirm  contract,  §  36. 

Notice  of  dishonor,  how  served  after,  §  3145. 

Notice  of  dishonor  in  ignorance  of,  §  3146. 

Of  partner,  dissolution,   §  2450. 

Parent,  of,  leaving  child  unprovided,  §  205. 

Satisfying  gift  or  legacy  before  death,  §  1367. 

Seamen,  of,  who  entitled  to  wages,  §  2062. 

Without  heirs,  etc.,  defined,   §  1071. 
DEBT:    See  Creditor;  Debtor. 

Agreement  to  answer  for,  of  another,  §  1624. 

Extinguished  by  offer  of  payment,  §  1500. 

Homestead,  liable  for  certain,   §   1241. 

Husband  not  liable  for  antenuptial,   §   170. 

Legacies,  how  charged  with,   §§  1360,  1361. 

Liability  of  beneficiaries  for  testator's,   §   1377. 

Partner  in  liquidation  may  collect,  compromise,  etc., 
§  2461. 

Partner  may  require  partnership  property  to  be  ap- 
plied to,  §  2405. 

Pledgee  cannot  sell,  evidences  of,   §  3006. 

Separate  property  of  wife  liable  for  her  own,  §  171. 


DEBT — DECEIT.  857 

Separate  property  of  wife  not  liable  for,  of  husband, 

§  171. 
Special  partner,  liability  for,  §  2501. 
Special  partner's  contribution  liable  for,  §  2501. 
Stockholder,  liability  of,  for,   §   322. 
Testator,  property  of,  how  disposed  of  in  payment  of, 

§  1359. 
Wife,  earnings  of  not  liable  for,  of  husband,  §  168. 
DEBTOR:       See     Assignment     for     Creditors;     Creditor; 
Fraudulent  Conveyance. 
Application  of  general  performance  by,  §  1479. 
Application  of  payment  of  interest,  §  1479. 
Application  of  performance,   §   1479. 
Contracts  valid,  when,  §  3431. 

Creditor  can  avoid  act  of  for  fraud,  when  only,  §  3441. 
Creditor  is  who,  §  3430. 
Debtor  is  who,  §  3429. 
Effect  of  directions  to,  as  to  performance  by  creditors, 

§  1476. 
Fraudulent  misrepresentation  of,  as  to  pledge,  §  2999. 
Guaranty,  need  not  be  written,  when,  §  2794. 
Insolvent,  defined,   §   3450. 
Joint,  release  of  several,  effect  of,  §  1543. 
Marshaling  of  assets,  §  3433. 
Novation  by  substituting  new  for  old,  §  1531. 
Offer  of  payment  or  performance  stops  interest,  §  1504. 
Offer  of  performance  by  or  for,  §  1487. 
Performance  by  joint  debtor,  §  1474. 
Performance  must  be  made  by  or  for,  §  1473. 
Preferences,  §  3432. 
Receipt,  may  require,  §  1499. 
Relative  rights  of  creditors,  §  3433. 
Release  of  by  creditor,  effect,  §  1542. 
Release,  general,  by  creditor,  §  1541. 
Rights  of,   upon  prevention  of  performance,    §§   1512- 
1514. 

Surplus  of  rents  and  profits  of  trust  liable  to  creditors, 
when,  §  859. 
DECEIT,  an  essential  element  of  fraud,   §  1572. 

In  general,  §§  1709-1711. 

One  willfully  deceiving  another,  liabilty,  §  1709. 

Renders   contract  voidable,   §   1567. 


8B8  DECEIT — DEFECT. 

Upon  the  public,  effect  of,  §  1711. 

What  constitutes,  §  1710, 

When  actionable,  §§  1709,  1710. 
See  Fraud. 
DECK,  freight  not  to  be  stowed  on,  §  2117. 

Things  stowed  on,  general  average,  §  2154. 
DECLARATION,  abandonment  of  homestead,  of,   §§  1243, 
1244. 

Homestead,  of,  effect  of  filing  for  record,  §§  1265,  1269. 

Homestead,  of,  how  acknowledged,  §§  1262,  1266. 

Homestead,  of,  to  be  recorded,  §§  1264,  1268. 

Homestead,  of,  what  to  contain,   §§  1263,  1267. 

Marriage,  of,  action  to  compel,  §  78. 

Marriage,  of,  how  made,  §§  75,  76. 

Marriage,  of,  to  be  acknowledged  and  recorded,  §  77. 

Trust,  of,  act  in  contravention  to,  void,  §  870. 

Trust,  of,  effect  of  omitting  in  grant,  §  869. 

Trust,  of,  trustee  must  obey,  §  2258. 

Trust,  of,  what  to  express,  §  2253. 
DEED,  escrow,  delivery  in,  §  1057. 

Cemetery  coi-porations,  deeds  by,  p.  689,  Stats. 

Guardian  appointed  by,  §  241. 

Precedent  conditions,  §  1110. 

Re-entry,  when  and  how  made,  §  791. 

Right  of  re-entry  can  be  transferred,  §  1046. 

Surrendering  or  canceling  of  grant  does  not  reconvey, 
§  1058. 

Time  of  creation  of  interest  created  by,  §  749. 

Title  deeds,  to  whom  belong,  §  994. 

When  deemed  a  mortgage,  §§  2924,  2925. 
See  Conveyance;  Transfer. 
DEFAMATION:      See  Libel;    Slander. 

How  effected,  §  44. 
■    Right  to  protection  from,   §  43. 
DEFAULT,  divorce  by,  §  130. 

See   Statute  of  Frauds. 
DEFECT,  certificate  of  acknowledgment,  in,  action  to  rem- 
edy, §  1202, 

Depositor  must  indemnify  depositary  for,  §  1833. 

Lender  must  indemnify  borrower  for,  §  1893. 

Warranty  of  manufacturer  against  latent,  §  1769. 

Will,  in  description  in,  §  1340. 


DEFINITIONS.  8B9 


DEFINITIONS,   absolute  ownership,  §   679. 
Accord,  §  1521. 
Actual  agency,   §  2299. 
Actual    authority,    §  2316. 
Actual  notice,   §  18. 
Adultery,  §  93. 
Adults,  §  27. 
Agency,    §    2295. 
Agency,  ostensible,   §  2300. 
Agent,  §  2295. 

Agents,  general  and  special,  §  2297, 
Agreement  to  buy,  §  1728. 
Agreement  to  sell,  §  1727. 
Agreement  to  sell  and  buy,  §  1729. 
Annuities,   §   1357. 
Appurtenances,   §   662. 
Auctions,  §  1792. 
Authority,  ostensible,  §  2317. 
Bail,  §  2780. 
Beneficiary,  §  2218. 
Bill  of  exchange,  §  3171. 
Bill  of  lading,  §  2126. 
Bottomry,  §  3017. 
Charter  party,  §  1959. 
Chattel  interests,   §   765. 
Chattels  real,  §  765. 
Check,  §  3254. 
Chose  in  action,  §  953. 
Collateral  consanguinity,  §  1390. 
Collusion,   §   114. 
Common  carrier,   §   2168. 
Community  property,   §§   164,  687. 
Compensation,  §  3274. 
Completion  of  appropriation,   §  1417. 
Concealment,    §    2561. 

Conditional  devises  and  bequests,  §  1346. 
Conditions  concurrent,  §  1437. 
Conditions  precedent,  §§  708,  1346,  1436. 
Conditions   subsequent,   §§   708,  1349,  1438. 
Condonation,  §  115. 
Connivance,  §  112. 
Consignee,  §  2110. 


860  DEPINITIONiJ. 

Consignor,   §  2110. 

Constructive  fraud,   §   1573. 

Constructive  notice,  §  18. 

Contingent  interests,  §  695. 

Continuing  guaranty,   §  2814. 

Contract,   §   1549. 

Contract  of  carriage,  defined,  §  2085. 

Conveyance,   §  1215. 

Corporation,  §  283. 

Corporations,  private,  §  284. 

Corporations,   public,    §  284. 

Covenants,  running  with  the  land,  §  1460. 

Create  debts,    §   579. 

Creditor,  §  3430. 

Debtor,  §  3429. 

Demonstrative  legacy,   §   1357. 

Depose,  §  14. 

Deposit  for  exchange,  §  1818. 

Deposit  for  safe-keeping,  §  1817, 

Desertion,   §   95. 

Detriment,  §  3282. 

Deviation,   §   2694. 

Direct  consanguinity,  §  1390. 

Domestic  navigation,  §  962. 

Domestic   ship.    §   963. 

Dominant  tenement,   §   803. 

Double  insurance,  §  2641. 

Duress,  §  1569. 

Employment,  contract  of,  §  1865. 

Escrow,   §   1057. 

Exchange,  §  1804. 

Executed  contract,  §  1661. 

Executory  contract,   §   1661. 

Express  contracts,  §  1620. 

Extreme  cruelty,  §  94. 

Factor,   §§   2026,  2367. 

Fee,  §  762. 

Foreign  bill  of  exchange,  §  3224. 

Foreign  navigation,  §  962. 

Foreign  ship,  §  963. 

Freeholds,  §  765. 

Freight,  §  2110. 


DEFINITIONS".  861 


Freightage,  §§  2110,  2661. 

Future  interest,   §   690. 

General  agent,  §  2297. 

General  average,  §  2148. 

General  indorsement,  §  3112. 

General  legacies,  §  1357. 

General  letter  of  credit,  §  2861. 

General  lien,  §  2874. 

General  partnership,  §  2424. 

Gift,  §  1146. 

Gift,  causa  mortis,  §  1149. 

Good   consideration,    §    1605. 

Good-will,  §  992. 

Grant,    §    1053. 

Gratuitous  deposit,  §  1844. 

Guaranty,  §  2787. 

Guardian,    §   236, 

Guardian,  general,  §  239. 

Guardian,  special,  §  240. 

Habitual  intemperance,  §  106. 

Head  of  family,  §  1261. 

Hiring,   §   1925. 

Hydraulic   mining,    §   1425. 

Implied  contract,    §   1621. 

Impossibility,  §  1597. 

Income,  §  748. 

Incumbrance,  §  1114. 

Indemnity,    §   2772. 

Indorsement,   §  3108. 

Indorser,  §  3108. 

Inland  bill  of  exchange,  §  3224. 

Inland  carriers,  §  2087. 

Insolvency,    §§    3077,   3450. 

Insurable  interest,    §   2546. 

Insurance,    §    2527. 

Insured,  §  2538. 

Insurer,  §  2538. 

Interest,   §   1915. 

Interest  in  common,  §  685. 

Involuntary  trust,  §  2217. 

Jettison,  §  2148. 

Joint  interest,   §  683. 


S62  DKFINITIONS. 

Land,  §  659. 

Letter  of  credit,  §  2858. 

Libel,  §  45. 

Lien,  §  2872. 

Limited  interest,  §  692. 

Loan,  §  1884. 

Loan  for  exchange,  §§  1902,  1903. 

Loan  of  money,  §  1912. 

Manager  of  ship,  §  2070. 

Managing  owner  of  ship,  §  2070. 

Marine  carriers,  §  2087. 

Marine  insurance,  §  2655. 

Marriage,  §  55. 

Mate,  §  2048. 

Mistake  of  fact,  §  1577. 

Month,  §  14. 

Mortgage,  §  2920. 

Negotiable  instrument,  §  3087. 

Novation,  §  1530. 

Nuisance,  §  3479. 

Object  of  contract,   §  1595. 

Obligation,    §   1427. 

Olographic   will,    §    1277. 

Open  policy,  §  2595. 

Ostensible  agency,  §  2300. 

Ostensible  authority,  §  2317. 

Ownership,  §  654. 

Partnership,    §    2395. 

Partnership   interest,   §   684. 

Payment,  §  1478. 

Perpetual  interest,  §  691. 

Personal  property,   §   14. 

Pledge,   §§   2986,  2987. 

Policy  of  insurance,   §   2586. 

Prescription,    §    1007. 

Present  interest,    §    689. 

Private  nuisance,  §  3481. 

Privileged  communication,  §  47. 

Promissory  note,  §  3244. 

Property,   §§   14,   654. 

Public  nuisance,  §  3480. 

Qualified  ownership,  §  680, 


DEFINITIONS— DKaRBB, 

Real  property,  §  14. 
Recrimination,  §  122. 
Re-insurance,  §  2646. 
Remainder,   §   769. 
Residuary   legacies,    §    1357. 
Respondentia,   §   3036. 
Reversion,  §  768. 
Running  policy,  §  2597. 
Sale,  §  1721. 
Satisfaction,  §  1523. 
Seamen,  §  2049. 
Seaworthiness,  §  2682. 
Servant,  §§  2009,  2012. 
Servient  tenement,  §  803. 
Several  ownership,  §  681. 
Ship,  §  960. 
Shipping,  §  960. 
Slander,  §  46. 
Special  agent,  §  2297. 
Special  indorsement,  §  3113. 
Special  letter  of  credit,  §  2861. 
Special  liens,  §  2875. 
Specific  legacy,  §  1357. 
Storage,  §  1851. 
Succession,  §  1383. 
Surety,  §  2831. 
Testify,  §  14. 
Thing  in  action,  §  953. 
Time,  unreasonable  lapse  of,  S  125. 
Transfer,  §§  1039.  1040. 
Trustee,  §  2218. 
Trustor,  §  2218.  4 

Undue  influence,  §  1575. 
Valued  policy,  §  2596. 
Vested  future  interest,  §  694. 
Voluntary  transfer,  §  1040. 
Voluntary  trust,  §  2216. 
Ward,  §  237. 
Warranty,  §  1763. 
Willful  neglect,  §  105. 

Words  and  phrases:    See  Words  and  Phrases. 
DEGREE  of  kindred,  how  established,  §  1389. 


864  DELAY— DELIVERY. 

DELAY,  creditor,  of,  does  not  discharge  guarantor,  §  2823. 

Carrier  to  travel  without  unreasonable,  §  2104. 

Deemed  deviation,  when,  §  2694. 

Excuse  of  performance  by,  §  1511. 

How  excused,  §  1511. 

In  performance  compensated  for,  when,  §  1492. 

Insurance,  notice  of  loss  under  to  be  given  without, 
§§  2633,  2636. 

Presentment,  in,  of  bill  of  exchange,  effect  of,  §  3189. 

Presentment,  in,  of  notice  of  dishonor  excused  when, 
§  3158. 

Presentment,  in,  of  promissory  note,  effect  of,  §  3248. 

Presentment   of    bill    of   exchange,    in,    how    excused, 
§  3219. 

Presentment  of  check,  in,  effect,  §  3255. 

Protest,  in,  how  excused,  §  3230. 

Reasonable    grounds    for,    rebuts    presumption    from 
lapse  of  time,  §  126. 
DELINQUENT   assessment,   action  to  recover   stock  sold 
for,  §  347. 

Assessment,  sale  of  stock  for,  §  341. 
DELIVERY,  constructive,  §  1059. 

Contract  in  writing  takes  effect  on,  §  1626. 

Deemed  time  of  creation  of  interest,  §  749. 

Deposit,  of,  by  joint  owners,  §  1827. 

Deposit,  of,  demand  necessary,  §  1823. 

Deposit,  of,  on  demand,  §  1822. 

Deposit,  of,  place  of,  §  1824. 

Employee  not  to  deliver  without  demand,  §  1987. 

Freight  of,  place  of,  §§  2118,  2119. 

Freight,  of,  to  holder  of  bill  of  lading,  §  2131. 

Freight,  of,  to  whom  *,nd  manner  of,  §  2118. 

Gift,  of,  necessary,  §  1147. 

Goods  sold,  of,  buyer's  directions,  §  1757. 

Goods  sold,  of,  expense  of,  §  1755. 

Goods  sold,  of,  notice  of  election  as  to  mode  of,  §  1756. 

Goods  sold,  of,  reasonable  hour,  §  1758. 

Goods  sold,  of,  when  to  be  made,  §  1753. 

Goods  sold,  of,  where,  §  1754. 

Grant,  of,  necessary,  §  1054. 

Grantee,  to,  necessarily  absolute,  §  1056. 

In  escrow,  §  1057.  i 


DELIVERY — DEPOSIT.  865 

Pledge,  essential  in,  §  2988. 

Presumption  of  time  of,  §  1055. 

Thing  bought,  to  be  paid  for  on,  §  1784. 
DEL    NORTE    COUNTY,  tolis  in,  §  514. 
DEMAND,  agent  to  deliver  to  third  person  on,  §  2344. 

Deposit  need  not  be  delivered  without,  §  1823. 

Deposit  to  be  delivered  on,  §  1822. 

Employee  not  bound  to  deliver  without,  §  1987. 

Employee,  to  render  account  without,  §  1986. 

Goods  sold  to  be  delivered  upon,  §  1753. 

Guarantor,  upon,  unnecessary,  §  2807. 

Lent  thing  need  not  be  returned  unless,  when,  §  1895. 

Lent  thing  to  be  returned  without,  §  1895. 

Negotiable  instrument,  of  payment  of,  when  necessary, 
§  3130. 

Performance,  of,  how  waived,  §  3004. 

Pledgor  of  performance,  on,  must  be  before  sale,  §  3001. 

Restoration  of  thing  wrongfully  taken,  necessity  of, 
§   1713. 

Servant  to  deliver  without,  §  2014. 
DEPOSE,  includes  what,  §  14. 
DEPOSIT:    See  Depositary;  Warehouseman. 

Abandoned  thing,  §  1872. 

Animals,  of,  §  1834. 

Borrower:    See  Loan. 

Charges,  sale  to  satisfy,  §  1857. 

Depositor,  who  is,  §  1814.  ; 

Exchange,  for,  §  1878. 

Exchange,  for,  defined,  §  1818. 

Finder,  duty  of,  §  1865. 

Finder  may  put  thing  found  on  storage,  §  1868. 

Finder,  obligation  of,  §  1864. 

Finder,    surrender    of    thing    found    exonerates    from 
liability,  §  1871. 

Finder  to  notify  owner,  etc.,  §  1865. 

Found  property,  claimant  to  prove  ownership,  §  1866. 

Gratuitous,  defined,  §  1844. 

Hire,  for,  called  storage,  §  1851. 

Indemnify,  depositor  to,  §  1833. 

Innkeeper,  with,  §§  1859,  1860. 

Involuntary,  duty  of  person  taking,  §  1816. 

Civ.   Code — 37 


866  DEPOSIT — DEPaSITARY. 

Involuntary,  how  made,  §  1815. 

Involuntary,  gratuitous,  §  1845. 

Joint,  §  1475. 

Joint,  delivery  to  depositors,  §  1827. 

Kinds  of,  §  1813. 

Lien  for  storage,  §  1856. 

Lien,  sale  to  satisfy,  §  1857. 

Loan:    See  Loan. 

Loss  or  injury,  liability  for,  §  1838. 

Money  in  payment  of  debt,  of,  §  1500. 

Reward  of  finder,  §  1867. 

Safe-keeping,  for,  defined,  §  1817. 

Sale  of  perishables,  §§  1837,  1857. 

Sale  of  property,  when  may  be  ordered,  §  1857. 

Sale  of  thing  found,  §§  1869,  1870. 

Savings  bank,  surviving  spouse,  §  579. 

Storage,   §§   1851-1857.     See  Storage. 

Termination  of,  §§  1854,  1855. 

Termination,   right  of,   when   agreement   as   to  time, 
§  1855. 

Thing   wrongfully   detained,    notice   to   owner   by   de- 
positary, §  1826. 

Unclaimed  deposits,  banks  to  publish  statements  p^ 

pp.   674,   675,    Stats. 
Use  of  thing  loaned,  §  1890. 
Voluntary,  how  made,  §  1814. 

See  Depositary;  Warehouseman. 
DEPOSITARY:    See  Deposit;  Warehouseman. 
Adverse  claim,  notice  of,  to  owner,  §  1825. 
Animals,  of,  duty  toward,  §  1834. 
Animals,  compensation  for  part  of  week,  §  1853. 
Compensation  of,  for  part  of  week  or  month,  §  1S53. 
Delivery  by,  notice  to  owner  of  adverse  claim,  §  1825. 
Delivery  by,  not  required  before  demand,  §  1823. 
Delivery,  by,  of  thing  owned  jointly,  §  1827. 
Delivery  by,  on  demand,  §  1822. 
Delivery  by,  on  demand,  when  excused,  §  1S22. 
Delivery  by,  place  of,  §  1824. 
Depositor  must  indemnify,  for  what,  §  1833. 
Gratuitous,  care  required  of,  §  1846. 
Gratuitous,  creditor  is,  when,  §  1505. 
Gratuitous,  duties  cease,  when,  §  1847. 


DEPOSITARY — DEVISE.  8CT 

Hire,  for,  compensation  for  parts  of  week,  etc.,  §  1853. 

Hire,  for,  degree  of  care  required  of,  §  1S52. 

Hire,  for,  finder  has  obligations  of,  when,  §  1864. 

Hire,  for,  who  is,  §  1851. 

Insurable  interest  of,  §  2548. 

Involuntary,  notice  to  owner  to  remove,  §  1847. 

Liability  for  loss  or  injury,  §  1838. 

Liability  to  rightful  owner  of  thing  deposited,  §  1826, 

Lien  of,  for  storage,  §  1856. 

Negligence,  limitation  of  liability  for,  §  1840. 

Notice  to  owner  of  thing  wrongfully  detained,  §  1826. 

Opening  deposit,  obligation  as  to,  §  1835. 

Perishables,  may  sell  when,  §  1837. 

Person  offering  thing  in  performance,  §  1503. 

Sale  by,  of  storage  property,  §  1857. 

Sale  of  thing  in  danger  of  perishing,  §  1837. 

Seller  of  personalty  is,  before  delivery,  §  1748. 

Service   by,   duties  and  liabilities  prescribed  by  title 
on  employment,  §  1839. 

Thing  wrongfully  detained,  exoneration  of  depositary, 
§  1826. 

Use  of  deposit,  rights  and  obligation  as  to,  §  1835. 

Use,  wrongful,  liability  for,  §  1836. 

Who  is,  §§  1814,  1851. 
DESCENT:    See  Succession. 

Statute  of,  §  1386. 
DESCRIPTION,  agreement  to  compensate  for  errors  of, 
effect  of,  §  1690. 

Error  of,  in  will,  how  remedied,  §  1340. 

DESERTION:    See  Divorce. 

DESTRUCTION  of  will  is  revocation,  §  1292. 

Of  will,  how  proved,  §  1293. 

Of  written  contract,  effect,  §§  1699,  1700. 
DETENTION,  of  person  or  property  avoids  contract,  when, 
§  1569. 

Of  property,  damages  for,  §  3335. 

DEVIATION,  carrier  not  to  make,  §  2104. 

Marine  insurance,  §§  2692-2697. 

Defined,  §  2694. 
DEVISE:    See  Wills. 


868  DILIGENCE— DIVORCE. 

DILIGENCE:    See  Care. 

DIRECTION,  buyer's,  as  to  delivery,  §  1757. 

Carrier  to  follow  whose,  §§  2115,  2116. 

Employee  to  follow,  §  1981. 

Factor  to  follow,  §  2027. 

Trustee  must  follow,  §  2258. 
DIRECTOR:    See  Corporations. 
DISAFFIRMANCE  of  infants'  contracts,  §§  35,  37. 
DISCHARGE  of  employee,  §§  1996,  2000. 

Of  principal  does  not  discharge  guarantor,  when,  §  2825. 

Of  servant,  §  2015. 

Of  trustee,  §§  2233,  2282. 

Of  trustee,  duties  of,  before  accepting  his,  §  2260. 

Of  trustee,  who  succeeds  after,  §§  2287-2289. 
DISSOLUTION,  corporations:      See  Corporations,  XVII. 

Banks  and  trust  companies,  p.  676,  Stats. 
DISTRIBUTION,  community  property  on  divorce,  §  147. 

Effect  of  advancements  on,  §  1395  et  seq. 

Intestates,  of  property  of,  §§  1384,  1386. 

Order  for,  subject  to  revision  on  appeal,  §  148. 
DISTRICT  ATTORNEY.    Action  for  penalty  against  bridge, 
ferry,  etc.,  corporation,  §  530. 

Examination  into  affairs  of  corporation  by,  §  382. 

DIVIDENDS:    See  Corporations. 

Amounts  to  be  reserved  before  making  by  insurance 
corporation,  §§  429,  431,  432. 
DIVISION  FENCE.    Easement  of  maintenance,  §  801. 
DIVORCE,  adultery  defined,  §  93. 

Adultery    of    husband,    legitimacy,    how    affected    by 
divorce  for,  §  144. 

Alimony,  community  and  separate  property,  order  of 
resort  to,  §  141. 

Alimony,  execution  for,   §  137. 

Alimony,  modifying  orders  granting,  §§  137,  139. 

Alimony  pendente  lite  when  allowed,  §  137. 

Alimony,  permanent,  §  139. 

Alimony,  receiver,  §  140. 

Alimony,  security  for,  §  140. 

Alimony,  when  divorce  not  granted,  §  136. 

Alimony,  when  wife  has  suflacient  support,  §  142. 


DIVORCE.  869 

Annulment  of  marriage,  §§  83-86. 

Appeal,  revision  of  order  disposing  of  property,  §  148. 

Children  are  legitimate,  §  1387. 

Children,   community   and   separate   property   may   be 

subjected  to  support  of,    §143. 
Children:    See  Parent  and  Child. 
Collusion  defeats,  §  111. 
Collusion  defined,  §  114. 
Collusion,  presumption  of,  from  lapse  of  time,  §§  125, 

126. 
Community  property  disposed  of,  how,  §  146. 
Condonation  as  a  bar,  §  123. 
Condonation  as  recriminatory  defense,  §  123. 
Condonation  avoided  by  concealment,  §  120. 
Condonation  cures  desertion,  §  102. 
Condonation  defeats,  §  111. 
Condonation  defined,  §  115. 
Condonation,  evidence,  what  is  not,  §  118. 
Condonation  implies,  what,  §  117. 
Condonation,    presumption    of,    from    lapse    of    time, 

§§  125,  126. 
Condonation,  refusal  of  offer  of  amounts  to  desertion, 

§  102. 
Condonation,  requisites  to,  §  116. 
Condonation  revoked,  how,  §  121. 
Condonation,  when  can  be  made,  §  119. 
Connivance  defeats,  §  111. 
Connivance  defined,  §  112. 
Connivance  manifested,  how,  §  113. 
Connivance,  presumption  of,  from  lapse  of  time,  §§  125, 

126. 
Counsel  fees,  allowing  pendente  lite,  §  137. 
Counsel  fees,  execution  for,  §  137. 
Counsel  fees,  what  property  to  be  resorted  to,  §  141. 
Cruelty,  desertion  induced  by,  §  98. 
Cruelty,  extreme,  defined,  §  94. 
Custody  of  children,  modification  or  vacation  of  orders, 

§  138. 
Custody  of  children,  orders  respecting,  §  138. 
Decision  and  conclusions  of  law  filed  as  in  other  cases, 

§  131. 


870  DIVORCE. 

Decree    not    granted    on    uncorroborated    statements, 

§  130. 
Decree  restores  parties  to  unmarried  state,  §  91. 
Default,  decree  not  granted  by,  §  130. 
Default  of  defendant,  proof  of  allegations,  §  130. 
Defenses  to  actions  for,  §  111. 
Denying,  grounds  for,  §  111. 
Desertion  by  refusal  to  abide  by  husband's  selection  of 

home,  §  103. 
Desertion,  by  selecting  unfit  domicile,  §  104. 
Desertion  cured,  how,  §  102. 
Desertion  defined,  §  95. 
,  Desertion,  in  case  of  cruelty,  who  commits,  §  98. 
Desertion,  in  case  of  fraud  or  stratagem,  who  commits, 

§  97. 
Desertion  induced  by  cruelty,  §  98. 
Desertion  induced  by  fraud  or  stratagem,  §  97. 
Desertion  manifested,  how,  §  96. 
Desertion  must  extend  year,  §  107. 
Desertion,  refusal  of  offer  of  condonation  amounts    to, 

§  102. 
Desertion,  refusal  of  reconciliation  amounts  to,  when, 

§  101. 
Desertion,  return  and  soliciting  of  condonation,  §  102. 
Desertion,  separation  becomes,  when,  §  100. 
Desertion,  separation  by  consent  is  not,  §  99. 
Desertion,  what  amounts  to,  §  96. 
Disposition   of   homestead   and   community,   mode   of, 

§  146. 
Disposition  of  homestead   and  community,   order  for, 

§  147. 
Disposition  of  homestead  and  community,  revision  of 

order  for,  on  appeal,  §  148. 
Disposition  of  property,  order  for,  §  147. 
Domicile,  each  spouse  may  have,  on  separation,  §  129. 
Domicile  of  wife  in  actions  for,  §  129. 
Dmicile  fixed  by  husband,  refusal  of  wife  to  abide  by, 

is  desertion,  §  103. 
Domicile,  husband  may  fix,  §  103. 
Domicile,  presumptions  as  to  do  not  apply  in,  §  129. 
Domicile,  unfit,  husband  selecting,  amounts  to  deser- 
tion, §  104. 


DIVORCE.  87X 

Evidence,  not  granted  on  uncorroborated  testimony  of 

parties,  §  130. 
Evidence  of  facts  alleged  necessary,  §  130. 
Final  judgment  entered  when  divorce  denied,  §  131. 
Final  judgment  when  entered  on  interlocutory  judg- 
ment and  rights  on,  §  132. 
Grounds  for,  §  92. 
Grounds  for  denying,  §  111.  " 

Habitual  intemperance  defined,  §  106. 
Habitual  intemperance  must  extend  year,  §  107. 
Homestead  disposed  of,  how,  §  146. 
Interlocutory  judgment,  appeal  may  be  taken  in  six 

months,  §  131. 
Interlocutory  judgment,  death  of  party  after,  effect  on 

right  to  enter  final  judgment,  §  132. 
Interlocutory  judgment  entered  when  divorce  granted, 

§  131. 
Interlocutory  judgment,  final  judgment  may  be  entered 

on  in  one  year,  §  132. 
Interlocutory  judgment,  final  judgment  on,  effect  of  and 

rights  under,  §  132. 
Interlocutory  judgment,  final  judgment,  entry  of,  on, 

does  not  validate  prior  marriage,  §  132. 
Interlocutory  judgment,  final  judgment,  when  entered 

where  appeal  taken  or  new  trial  asked,  §  132. 
Lapse  of  time  defeats,  §  111. 
Lapse  of  time  establishes  what  presumptions,  §§  125, 

126. 
Limitation  defeats,  §  111. 
Legitimacy  of  children  born  after,  §  194. 
Legitimacy  of  children  when  divorce  for  adultery  of 

wife,  §  145. 
Limitation  of  actions  for,  §§  124-127. 
Maintenance,  action  for  without  divorec,  §  137. 
Maintenance  decreed  when  divorce  denied,  §  136. 
Maintenance,  receiver,  §  140. 
Maintenance,  security  for,  §  140. 
Maintenance,  what  property  resorted  to,  §  141. 
Maintenance,  where  divorce  denied,  §  136. 
Marriage:    See  Marriage. 

Presumptions  arising  from  lapse  of  time,  §§  125,  126. 
Proof  of  facts  alleged  necessary,  §  130. 


872  DIVORCE — DUEL. 

Recrimination  defeats,  §  111. 

Recrimination  defined,  §  122. 

Recriminatory  defense,  condonation  as,  §  123. 

Referee,  decree  not  granted  on  any  finding  or  state- 
ment of,  §  130. 

Referee,  proof  to  be  on  question  and  answer,  §  130. 

Remarriage  witliin  one  year  from  entry  of  interlocu- 
tory decree  forbidden,  §  61. 

Residence,  actual,  proof  of  required,  §  129. 

Residence,  length  of,  required  of  plaintiff,  §  128. 

Residence,  presumptions  do  not  apply  in  proof  of,  §  129. 

Separation,  consent  to  revocable,  §  101. 

Separation,  each  spouse  may  have  separate  domicile 
on  separation,  §  129. 

Separation,  when  amounts  to  desertion,  §§  100,  101. 

Separation,  when  not  desertion,  §  99. 

Willful  neglect  defined,  §  105. 

Willful  neglect  must  extend  year,  §  107. 
DOG,  killing  sheep  by,  §  3341. 

See  Animals. 
DOMESTIC   NAVIGATION    defined,   §   962. 

Domestic  ship,  what  is,  §  963. 

Vessel,  when  engaged  in,  §  962. 
DOMICILE,  divorce,  proof  of  actual,  required  in,  §  129. 

Guardian  to  select,  §  248. 

Husband  selects  unfit,  wife  not  bound,  §  104. 

Husband  to  select,  §§  103,  156. 

In  divorce,  requisites  in  regard  to,  §  128. 

Infant's,  §  213. 

Law  of,  governs  personal  property,  §  946. 

Separation  of  husband  and  wife,  domicile  in  case  of, 
§   129. 

Unfit,  selecting,  amounts  to  desertion,  §  104. 

Wife,  domicile  of,  on  suit  for  divorce,  §  129. 
DOMINANT  TENEMENT:    See  Easements. 
DOUBLE  INSURANCE:    See  Insurance. 
DOUBTFUL  WORDS  in  will,  §  1323. 

In  contract,  §  1654. 
DOWER  not  allowed,  §  173. 
DUEL,  damages  for  injuries  inflicted  In,  §§  3347,  3348. 


DUPLICATE — EJECTMENT.  873 

DUPLICATE,  alteration  of,  §  1701. 

Will,  of,  revocation  of,  §  1295. 
DURESS  as  ground  for  annulment  of  marriage,  §  82. 

Consent  obtained  by,  §  1567. 

Consists  in  what,  §  1569. 

Contract  under,  voidable,  §§  1567,  1689. 

Marriage   voidable   when   consent  obtained   by   force, 
§  58. 

Rescission  for,  §  1689. 

Will  procured  or  revoked  by,  §  1272. 

EARNINGS,  illegitimate  unmarried  minor,  of,  §  200. 

Legitimate  unmarried  minor,  of,  §  197. 

Minor  children,  of,  §  169. 

Wife,  of,  §§  168,  169. 
EASEMENT,  apportionment  of,  §  807. 

Attached  to  land,  enumeration  of,  §  801. 

Attached  to  land,  not  enumerated,  §  802. 

Dominant  tenement,  action  by  owner  of,  §  809, 

Dominant  tenement  defined,  §  803. 

Enumeration  of,  §§  801,  802. 

Extent  of,  §  806. 

Extinguished,  how,  §  811. 

Future  owner,  right  of  to,  §  808. 

Grantable  by  whom,  §  804. 

Held  by  whom,  §  805. 

How  far  usable  by  expectant  owner,  §  808. 

Irrigation,  right  of,  §  552. 

Lateral  and  subjacent  support,  §  832. 

Not  attached  to  land,  §  802. 

Partition  of,  apportionment,  §  807. 

Servient  tenement,  action  by  owner  of  for  possession, 
§  810. 

Servient  tenement  defined,  §  803. 

Transfer  of  property  carries,  §  1104. 

What  pass  with  property  conveyed,  §  1104. 

Who  cannot  hold,  §  805. 

EJECTMENT.    Damages  for  wrongful  occupation,  measure 
of,  §  3334.- 
Tenant  to  give  notice  of,  §  1949. 
Without  notice,  §  793. 


874  ELECTION — ESTATES    FOR    LIFE. 

ELECTION,   accession   to   personalty,   election   of  owner, 
§  1032. 
Corporate:    See  Corporations. 
Notice  of  election  as  to  delivery  of  chattel,  §  1756. 
ELECTIONS.    Day  a  holiday,  §  7. 
ELECTRIC   CORPORATION,  franchise,  proceedings  prior 

to  the  grant  or  sale  of,  §  497. 
ELECTRICITY,   rights   of   steam   railroad  to   use,   p.   772, 

Stats. 
ELEVATED  RAILWAYS,  franchise  for,  majority  of  front- 
age to  sign  petition,  §  492. 
Franchise  for,  terms  and  conditions,  §  492. 
Supervisors  may  grant  franchise  for,  §  492. 
EMANCIPATION  of  child,  §  211. 

EMINENT  DOMAIN,  crossings,  railroad,  condemning  land 
for,  §  472. 
Right  of,  in  general,  §  1001. 
EMPLOYMENT:    See  Master  and  Servant. 
ENEMY,  PUBLIC:    See  War. 
Cannot  be  insured,  §  2540. 

Carrier  not  liable  for  damages  caused  by,  §  2194. 
Performance  prevented  by,  §  1511. 
ENROLLMENT  of  vessels  governed  by  federal  laws,  §  966. 
ESCHEAT.    Intestate's  property  escheats,  when,  §  1386. 
Property    escheated,    subject    to    charges    and    trusts, 

§  1407. 
When  occurs,  §  1406. 
ESCROW,  delivery  in,  §  1057. 

Definition  of,  §  1057. 
ESTATE,  intestate's,  chargeable  with  debts,  §  1358. 
See  Property;  Real  Property. 

ESTATES  AT  WILL  are  chattel  interests,  §  765. 

Not  subject  to  execution,  §  765. 
ESTATES  FOR  LIFE.    Duty  of  owner  to  pay  taxes,  charges 
and  assessments,  §  840. 
Duty  of  owner  to  repair,  §  840. 
Grant  by  owner  of,  effect  of,  §  1108. 
Legatee  for  life,  inventory   by   and  what  to   contain, 
§  1365. 


ESTATES    FOR     LIFE — EVIDENCE.  '        875 

May  be  created  in  a  term  of  years,  §  773. 

Owner  of  rights  of  in  use  of  land,  §  818. 

Remainder  for  life  or  term  of  years  must  be  to  one  in 

esse,  §  777. 
Rent  due  upon  lease  for  life,  how  recovered,  §  824. 
Successive    cannot    be   limited    except   to    persons    in 

being,  §  774. 
ESTATES  FOR  YEARS  are  chattels  real,  §  765. 
Grant  by  owner  of,  effect  of,  §  1108. 
Limitation  on  power  of  suspension,  §  770. 
ESTATES    OF    DECEDENTS.      All    property   of   intestate 

chargeable  with  debts,  §  1358. 
Beneficiaries'  liability  for  testator's  obligations,  §  1377. 
Bona  fide  purchaser  from  one  claiming  by  succession, 

effect  of  will,  §  1364. 
Community   property   on   husband's   death   subject   to 

debts  and  family  allowance,  §  1402. 
Expenses  of  administration  and  allowances  to  family 

to  be  first  paid,  §  1359. 
Heir's  conveyance  good  unless  will  proved  within  foxir 

years,  §  1364. 
Intestate's  estate  chargeable  with  debts,  §  1359. 
Order  of  resort  to  for  payment  of  debts,  §  1359. 
Successors  liable  for  decedent's  obligations,  §  1^08. 
See  Executors  and  Administrators;   Succession;  Wills. 
ESTATES  OF  FREEHOLD  defined,  §  765. 
ESTATES  TAIL,  abolished,  §  763. 

ESTOPPEL,    after-acquired    title    inures    to    mortgagee, 

§  2930. 
Conveyance  passes  after-acquired  title,  §  1106. 
Failure  to  forbid  act  done  on  one's  behalf,  §  3519. 
EST  RAY.    Finder  of  property,  in  general,  §§  1864-1872, 
EVIDENCE:    See  Witnesses. 

Certificate  of  change  of  names  in  partnership,  §  2471. 
Certificate  of  proof  of  instrument,  what  to  state,  §  1200. 
Certificate  of  restoration  of  lunatic  raises  presumption 

of  capacity,  §  40. 
Certificate  of  shipmaster  to  exertions  to  save  vessel, 

§  2059. 
Certified  copy  of  articles  of  incorporation  prima  facie. 
§  297. 


876  EVIDENCE— EXECUTION. 

Condonation,  evidence  of,  §  118. 
Divorce,  not  on  uncorroborated,   §  130. 
Execution  of  instruments,  proof  of,  when  not  acknowl- 
edged, §  1195. 
Handwriting  proved,  how,  §§1198,  1199. 
Insurance,  of  loss,  §  2634. 
Marriage,  how  proved,  §  57. 

Oral  stipulations,  etc.,  superseded  by  writing,  §  1625. 
Record  of  inventory  of  wife's  property,  §  166. 
'  Records,    certified    copies    of    instruments    defectively 
executed  as  evidence,  §  1207. 
Register  of  partnership  names  as,  §  2471. 
Subscribing  witnesses,  manner  of  proving  instrument 
by,  §§  1196-1199. 
EXCAVATION,  right  of,  by  lateral  owner,  §  832. 
EXCEPTIONS.     General  authority  of  agent,  exceptions  to, 

§  2322. 
EXCHANGE,  bill  of:    See  Negotiable  Instruments. 
Defined,  §  1804. 
Deposit  for,  §§  1813,  1818,  1878. 
Form  of  contract,  §  1805. 
Loan  for,  §§  1902-1906. 
Loan  for:    See  Loan. 

Parties  have  rights  of  buyers  and  sellers,  §  1806. 
Personalty  passes  by,  when,  §  1140. 
Personalty  passes  under  executory  agreement,  when, 

§  1141. 
Title  when  only  transferred  by  executory  agreement 

of,  §  1142. 
Warranty  of  money,  §  1807. 
EXECUTION.     Alimony  and   counsel  fees,   execution  for, 
§  137. 
Estates  at  will  not  subject  to  sale  under,  §  765. 
Exemption  of  estates  at  will,  §  765. 
Franchise  may  be  sold  under,  §  388. 
Homestead  not  subject  to,  generally,  §  1240. 
Homestead  subject  to,  when,  §  1241. 
Lien  of  officer,  §  3057'. 

Mortgaged  personalty,  against,  §§  2968-2970. 
Mortgaged  property,  how  levied  on,   §   2969. 
Mortgaged  property,   sale  under  attachment  and   dis- 
position of  proceeds,  §§  2968,  2970. 


EXECUTION — EXEMPLARY    DAMAGES.  877 

Principal  bound  by,  incomplete,  §  2331. 
.    Principal  whether  bound  by,  in  excess,  §  2333. 
Redemption  of  franchise,   §   392. 

EXECUTOR     AND     ADMINISTRATOR:      See    Estate    ot 
Decedent. 

Apprenticing  minor,  §  265. 

Apprentice  or  clerk,  power  of  to  bind  child  as,  §  267. 

Authority  given  to  to  appoint  executor  is  void,  §  1372. 

Authority  of,  before  qualification,  §  1373. 

Chose  in  action,  when  passes  to,  §  954. 

Corporation,  act  authorizing  to  act  as,  p.  702. 

Devise,  specific,  may  be  authorized  to  sell,  §  1363. 

DisaflBrmance  by,  of  infant's  contract,  §  35. 
'  Executor  according  to  the  tenor  of  will,  §  1371. 

Executor  not  to  act  until  qualified,  §  1373. 

Expense  of  administration,  order  of  payment,  §  1359. 

Foreign,     satisfaction    of    mortgage     on     record     by, 
§  29391/2. 
"    Legacy,  specific,  may  be  authorized  to  sell,  §  1363. 

Person  intended  as  executor  but  not  named,  appoint- 
ment of,  §  1371. 

Property   specifically  bequeathed,   may   be   authorized 
to  sell,  §  1363. 

Qualified,  not  to  act  till,  §  1373. 

Rights  of  one  who  was  intended  to  be  appointed,  §  1371. 

Specific  bequest,  may  be  authorized  to  sell,  §  1363. 

Stock  of  decedent,  executor  to  represent,  §  313. 

Wages  of  deceased  seamen,  §  2062. 

See  Estates  of  Decedents;   Wills. 
EXECUTORY,  agreement  for  sale  of  real  property,  §  1731. 

Agreement  transfers  title,  when,  §  1141. 

Consideration,  §  1609. 

Consideration  ascertained,  how,  §  1611. 

Consideration  need  not  be  stated,  §  1610. 

Contract  of  marriage  to  be  in  writing,  §  1624. 

Contract  defined,  §  1661. 

Contract,  covenants  when  required  by,  §  1733. 

Grant  on  condition  precedent,  §  1110. 

Instrument,  implied  warranty  on  sale,  §  1774. 
EXEMPLARY  DAMAGES:    P.ee  Damages. 


878  EXEMPTIONS— FACTOR. 

EXEMPTIONS.     Assignment  for  creditors,   exempt  prop- 
erty does  not  pass,  §  3470. 

Homestead,  of,  §§  1240.  1241. 

Homestead  sale,  of,  proceeds  of,  §  1257. 

Shares  in  building  and  loan  a"  ^oiations,  exemption  of, 
§  643. 
EXONERATION,  carrier  of,  on  delivery  of  bill  of  lading, 
§  2131. 

Gratuitous  pledge  holder,  of,  §  2995. 

Guarantors,  of,  §  2819. 

Innkeeper,  of,  §  1860. 

Lender,  of,  from  liability,  §  1892. 

Owner,  of,  from  claim  of  finder,  §  1871. 

Partner,  of,  on  renunciation  of  future  profits,  §  2417. 

Shipmaster,  of,  on  abandonment,  §  2041. 

Surety,  of,  §§  2840,  2845. 

See  Suretyship. 
EXPECTANCY,  insurable  interest  in,  §§  2547,  2549. 

Mere  expectancy  is  not  an  interest,  §  700. 
EXPECTANT  ESTATES:    See  Future  Interests. 
EXTENSION  of  existence  of  corporations,  §§  401,  402. 

Of  time  of  sale  of  stock,  §  345. 

FACT,  actual  fraud,  question  of,  §  1574. 

Concealment  makes  condonation  void,  §  120. 

Fraudulent  intent,  question  of,  §  3442. 

Mistake  defined,    1577. 

Mistake  of  foreign  law,  a  mistake  of,  §  1579. 
FACTOR,  actual  authority  of,  §  2368, 

Agent,  factor  as,  §  2367. 

Barter  by,  §  2368. 

Cojisignments:    See  Consignment. 

Credit  by,  §  2028. 

Credit,  power  to  sell  on,  §  2368. 

Defined,  §§  2026,  2367. 

Del  credere,  §§  2029,  2794. 

Delegation  of  authority  by,  §  2368. 

Guaranty,  §  2794. 

Guaranty  commission,  liability  on,  §  2029. 

Guaranty  of  sales  by,  need  not  be  written,  §  2794. 

Instructions,  duty  to  obey,  §  2027. 


FACTOR— FERRY.  879 

Insurance  by,  §  2368. 

Liability,  cannot  relieve  himself  from,  §  2030. 

Lien  of,  §  3053. 

Mortgage  by,  §  2368. 

Obedience  required  from,  §  2027. 

Ostensible  authority  of,  §  2369. 

Pledge,  no  power  to,  §  2368. 

Sale  by,  for  reimbursement,  §  2027. 

Sale  by,  on  credit,  §  2028. 
FAIR.    Agricultural  fair  corporations,  §§  620-622. 
FALSE   REPRESENTATIONS:    See  Fraud;   Insurance. 
FARE:    See  Carrier;  Railroad. 
FATHER:    See  Parent  and  Child. 
FEE    SIMPLE  defined,  §  762. 

Limiting  upon  a  fee,  §  773. 

Owner   in,   surface   and   everything  above   and   below 
belongs  to,  §  829. 

Title,  when  presumed  to  pass,  §  1105. 

What  estates  are  fees,  §  762. 

Words  of  inheritance  unnecessary,  §  1072. 

Word  heirs  not  necessary  to  pass,  §  1329. 
FEES,  recorder's,   §  1165. 

Foreign  corporations,  fees  required  of,  p.  772,  Stats. 
FEE  TAIL  abolished,  §  763. 
FELONY,  ground  for  divorce,  §  92. 

Limitation  of  action  of  divorce  for,  §  124. 
FEMALE  under  eighteen,  minor,  §  25. 

Of  fifteen  may  marry,  §  56. 
FEME  COVERT:    See  Husband  and  Wife;  Married  Woman. 
FENCES,  coterminous  owner  bound  to  maintain,  §  841. 

Division,  §§  801,  841. 

Easement,  an,  §  801. 

Railroad's  duty  and  liability  respecting,  §  485. 

Tenant  for  life  to  repair,  §  840. 

See  Real  Property. 
FERRY,  rights  and  duty  of  wagon  road  corporations  re- 
specting, §  514. 
■    Statutes    governing    ferry    corporations    apply    where 
owned  by  individual,  §  531. 

See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 


$80  FICTITIOUS— FOREIGN. 

FICTITIOUS  name  in  partnership,  §§  2466,  2467. 

Payee,  §  3103. 
FILING,  affidavits  of  sale  of  delinquent  stock,  §  348. 

Articles  of  incorporation,  §  296. 

Articles  prerequisite  to,  §§  293,  296. 

Articles,  duty  of  secretary  of  state,  §  296. 

Inventory  of  wife's  separate  property,  §§  165,  166. 
FINDER,  abandoned  thing,  §  1872. 

Claimant  to  prove  ownership,  §  1866. 

Compensation  for  expenses,  §  1867. 

Duty  of,  §  1865. 

Exoneration   of   owner   by   surrender   of   property   to, 
§  1871. 

May  put  thing  found  on  storage,  §  1868. 

Not  bound  to  take  charge,  §  1864. 

Obligations  of,  §  1864. 

Reward  of,  §  1867. 

Sale  of  thing  found,  §§  1869,  1870. 

Surrender  of  thing  found  to,  §  1871. 

To  notify  owner,  §  1865. 
FIRE,  deposit,  involuntary,  §  1815. 
FIRE  INSURANCE:    See  Insurance. 
FISH,  right  to  take,  §§  801,  802. 
FIXTURES  are  what,  §  660. 

Attachments  to  mines,  what  are  fixtures,  §  661. 

In  general,  §  1013. 

Mines,  attached  to,  §  661. 

Mortgage  a  lien  on,  §  2926. 

Ownership  of,  §  1013. 

Tenant  may  remove  what,  §  1019. 

Thing  when  deemed  to  be  affixed,  §  660. 
FLUME,  water  company's  duty  respecting,  §  551, 
FORCE:    See  Duress. 
FORECLOSURE  of  mortgages,  §  2967. 

Of  right  to  redeem  pledge,  §  3011. 

Right  of  redemption,  foreclosure  of,  §  2931, 
FOREIGN  bill,  acceptance  and  payment  for  honor,  §§  3203, 
3233. 

Bill,  damages  for  dishonor  of,  §§  3234-3238. 


FOREIGN— FORM.  881 

Bill,  protest  of,  when  excused,  §  3230. 

Bill,  protest  necessary,  §  3225. 

Bill,  waiver  of  protest  and  effect  of,  §  3232. 

Building  and  loan  associations,  §  645. 

Corporation,  liability  of  stockholders,  §  322. 

Country,   sale   by  corporation   of  property,   franchises 

or  concessions  in,  §  364. 
Executor,  discharge  of  mortgage  by,  §  2939i/^. 
Law,  mistake  of  is  mistake  of  fact,  §  1579. 
Marriage,  validity  of,  §  63. 
Mutual   insurance   company   must  have   $200,000   cash 

assets,  §  419. 
Navigation  defined,  §  962. 
Partnership,  fictitious  name,  §  2467. 
Ship  defined,  §  963. 
Will,  validity  of,  §  1285. 

FOREIGN  CORPORATIONS:     See  Corporations,  XVIII. 
Railroad  corporations,  act  authorizing  doing  business 
on  equal  terms,  p.  764. 
FOREIGNERS:    See  Alien. 

FORFEITURE,    conditions    involving,    strictly    construed, 

§  1442. 
Contract  for,  of  property  subject  to  lien,  §  2889. 
Conveyance  in  excess  of  title  does  not  work,  §  1108. 
Homestead  corporations,  §  562. 

Powers  of  railroad  corporation  for  non-user,  §  468. 
Railroad,  forfeiture  for  want  of  operation  of,  p.  765, 

Stats. 
Relief  in  case  of,  §  3275. 
Remedies  of  grantee  or  devisee  of  rent  or  reversion  on, 

§  821. 
Servitude,  for  non-user,  §  811. 
Specific  or  preventive  relief  not  granted  to  enforce, 

§  3369. 
Street  railroad,  by,  for  failure  to  commence  or  com? 

plete  road  in  time,  §  502. 
Wages  of  seamen,  grounds  for,  §  2063. 
FORM,  certificate  of  acknowledgment,  of,   §   1189. 

Certificate   of   acknowledgment   by   attorney   in   fact, 

§  1192. 
Certificate  of  acknowledgment  by  corporation,  §  1190. 


882  FORM— FRAUD. 

Certificate    of    acknowledgment    by    married    woman, 
§  1191. 

Chattel  mortgages,  §  2956. 

Covenants  in  execution  of  executory  contract,  §  1734. 

Dishonor,  form  of,  §  3143. 

Grant  of,  §  1092. 

Marriage,  of  solemnizing,  §  71. 

Notice  of  assessment,  §  335. 

Notice  of  delinquency,  §  337. 

Notice  of  dishonor,  §  3143. 

Notice  of  tenant  at  will  to  quit,  §  789. 

Personal  mortgage,   §  2956. 

Protest,  §  3227. 

Real  mortgage,  §  2948. 

Warranty  in  policy  of  insurance,  §  2604. 
FRANCHISE,  execution  sale  of,  place,  §  393. 

Execution  purchaser  of,  rights  and  duties  of,  §§  389,  390. 

Forfeiture  of  railroad,   §   468. 

Ordinances  granting,  acts  validating,  p.  763. 

Property,  franchise  as,  §  388. 

Railroad,  right  to  purchase  franchises  of  other  roads, 
§§   465,   494. 

Railroad,  acts  relating  to  sale  of  and  governing  con- 
ditions of  sale,  pp.  753-762. 

Redemption,  §  392. 

Sale  of  franchises  in  foreign  country,  §  364. 

Telegraph  or  telepnone,  transfer  of,  §  540. 

Time  within  which  street  railway  franchises  may  be 
sold,  act  limiting,  p.  773. 

Transfer  of,  by  corporation:    See  Corporations. 

See  Corporations.  . 

FRATERNAL  CORPORATION:     See  Religious,  Social,  and 
Benevolent   Corporations. 

Mutual  life,  etc.,  insurance  corporations,  §§  437-452. 
FRATERNAL   SOCIETY,   exempt  from  insurance  laws,   S 
451. 

Not  insurance  corporations,  §  451. 
FRAUD,  actual,  a  question  of  fact,  §  1574. 

Actual  or  constructive,  §  1571. 

Actual,  what  constitutes,  §  1572. 

Agent  not  authority  to  defraud  principal,  §  2306. 


FRAUD.  883 

Apprenticeship,  ground  for  annulling,  §  276. 

As  affecting  right  to  specific  performance,  §  3391. 

As  ground  for  annulment  of  marriage,   §  82. 

By-bidding,  §  1797. 

Carrier,   cannot   exonerate  from  liability   for,    §   2175. 

Consent  obtained  by,  §  1567. 

Contract  deemed  obtained  through,  §§  1568,  1571,  1572, 

1573. 
Contract  for  exemption  from  one's  own,  void,  §  1668. 
Contract   obtained    through,    voidable,    §§    1566,    1567, 

1689. 
Contract  prevented  from  being  put  in  writing  by,  en- 
forced when,  §  1623. 
Constructive,  defined,  §  1573. 
Constructive  or  actual,   §   1571. 
Deceit,  §§  1709-1711. 
Desertion  induced  by,  §  98. 

Disregarding  erroneous  parts  of  writing,  §  1640. 
Effect  on  oral  contract  not  in  writing  through  fraud,  S 

1623. 
Enforcing   oral    contract   against   fraudulent   party,    § 

1623. 
Exemplary  damages  in  case  of,  §  3294. 
Instrument,  power  to  revoke,  when  deemed  executed, 

§§  1229,  1230,  1231. 
Instrument,  creditor,  when  can  avoid,   §   3441. 
Instrument,    when    makes    void    against   purchaser,    § 

1227. 
Instrument,  when  void  against  creditors,  §  3439. 
Insurance,  omission  to  communicate  avoids,   §§   2562, 

2569. 
Insurance,  return  of  premium  for,  §  2619. 
Insurer,  when  exonerated  for  loss  through,  §  2629. 
Intent,  question  of  fact,  §  3442. 
Interest  as  damages  in  case  of,  §  3288. 
Marine  insurance,  in  valuaton  under,  §  2736. 
Marriage,  contracted  through,  §  58. 
Marriage,  in  contracting,  ground  for  annulling,  §  82. 
One  fraudulently  dispossessing  himself  may  be  treated 

as  in  possession,  §  3518. 
Pledge,  misrepresenting  value  of,  §  2999. 
Reformation  of  contract  for,  §  3399. 


884  FRAUD— FRAUDULENT    CONVEYANCE. 

Rescission  for,  §§  1689,  1690. 

Rescission  for,  what  stipulations  do  not  defeat,  §  1690. 

Specific  performance,  as  affecting  right  to,  §  3391. 

Trust  arising  from,  §  2224. 

Trustee  guilty  of,  when,  §  2234. 

Undue  influence  defined,  §  1575. 
FRAUDULENT  CONVEYANCE,  assignment  for  creditors, 
when  void,  §  3457. 

Avoidance  of,  creditors,  when  can  avoid,  §  3441. 

Auction  sale  of  stock  in  trade  at,  notice  to  be  recorded, 
§  3440. 

Bottomry,  delivery,  §  3440. 

Chattel  mortgages  as,  §  2957. 

Chattel  mortgage,  delivery,  §  3440. 

Consideration,  transfer  without,  may  be  valid,  §  3442. 

Creditors  may  avoid,  when,  §  3441. 

Debtor's  contracts  valid,  when,  §  3431. 

Delivery  of  personalty  necessary,   §   3440. 

Fraud  a  question  of  fact,  §  3442. 

General  rule  as  to,  §  3439. 

Instruments    designed    to    defraud   purchasers   or   in- 
cumbrances, §  1227. 

Judicial  proceedings  as,  §  3439. 

Lien,  delivery,  §  3440. 

Mutual  fraud,  §  1228. 

Preference  by  special  partnership,  when  void,  §  2496. 

Preferences  valid,   §  3432. 

Presumption  as  to,  in  absence  of  delivery,  etc.,  §  3440. 

Purchaser  with  notice,  .§§  1227,  1228. 

Question  of  fraud  determined,  how,  §  3442. 

Realty  of,  what  are,  §§  1227-1231. 

Realty  of,  what  not,  §  1228. 

Reservation  of  interest  avoids  assignment  for  cred- 
itors, §  3457. 

Reserving  power  of  revocation,  power  when  executed, 
§§   1229,  1230. 

Respondentia,  delivery,  §  3440. 

Sale  of  stock  in  trade,  five  days'  notice  of  to  be  re- 
corded, §  3440. 

Ship  or  cargo  need  not  be  delivered,  §  3440. 

Special  partnership  by,  §  2496. 


FRAUDULENT    CONVEYANCE — FREIGHT,    ETC.  885 

Transfer  of  stock  in  trade,  five  days'  notice  to  be  re- 
corded,  §   3440. 
Unlawful  transfers,  §§  1227-1231. 
Void,  §  3439. 

Voluntary  transfers,  effect  of,   §  3442. 
Voluntary  transfers  valid,  when,  §  3442. 
What  transfers  are,  in  general,  §  3439. 
Wines  need  not  be  delivered,  §  3440. 
FREEHOLD  defined,  §  765. 
Estate  for  life  is,  §  765. 
Estate  for  life  of  third  person  is,  §  766. 
Estate  of  inheritance  is,  §  765. 
May  commence  at  future  day,  §  773. 
FREIGHT   AND   FREIGHTAGE,   abandonment  of  ship,   § 

2730. 
Abandonment  of  freightage  by  insurer,  §  2717. 
Bill  of  lading:    See  Bill  of  Lading. 
Carrier   exonerated   from   liability  for   by   delivery,   S 

2131. 
Carrier's  lien  for  freightage,  §  2144. 
Carrier  must  not  stow  on  deck,  §  2117. 
Consignee  defined,  §  2110. 
Consignor  defined,   §   2110. 
Consignor  of  valuable,  to  declare  its  nature  and  value, 

§  2200. 
Consignor,  presumed  liable  for  freightage,  §  2137. 
Consignor,  when  not  liable  for  freightage,   §  2137. 
Damages  for  carrier's  refusing  to  carry,  §  3315. 
Damages   for   carrier's   failure   or   delay   in   delivery, 

§§  3316,  3317. 
Defined,   §§   2110,   2661. 
Delivered,  where  to  be,  §§  2118,  2119. 
Delivery  beyond  usual  route,   §   2201. 
Duty  after  arrival,  §§  2120,  2121. 
Freightage,  apportionment  of,   §§  2140-2142. 
Freightage,   how   valued   on  general   average,   §   2153. 
Freightage,  in  marine  insurance,  defined,  §  2661. 
Freightage,  liable  for  contracts  of  shipmaster,  §§2376, 

2380. 
Freightage,  not  chargeable  on  increase  of  freight,  § 

2139. 
Freightage,  payable  by  whom,  §§  2137,  2138. 


886       FREIGHT    AND    FREIGHTAGE— FUTURE  INTERESTS. 

Freightage,  payable,  when,  §  2136. 
Insurable  interest  in  freightage,  §  2662. 
Insurable  interest,  when  exists,  §  2663. 
Liability  of  inland  carriers  for  loss,  §  2194. 
Liability  of  marine  carriers  for  loss,  §  2197. 
Marine  insurance,  freightage  in,  §§  2661-2663. 
Master  of  ship  may  hypothecate,  §  2377. 
Notice  of  arriv^,!,  when  necessary,  §  2120. 
Proof  in  case  of  loss  of  through  freight,  §  2202. 
Sale  of  perishable  property  for,  §  2204. 
Seaman  has  lien  upon  freightage,  §  3056. 
Shipmaster  has  lien  upon  freightage,   §  3055. 
Ship's  manager  cannot  give  up  lien  for,  §  2389. 
Ship's  manager  may  settle  for  freightage,  §  2388. 
Stored  by  carrier,  when  proper,  §  2121. 
Value  of  in  estimating  loss  under  open  policy,  §  2741. 
Wages  of  seamen,  §§  2054,  2058. 
When  carried  farther  than  agreed,  §  2143. 
Who  liable  for,   §   2137,  2138. 
Whose  directions  govern  delivery  of,  §  2115. 
See  Carrier. 
FRIENDLY  SOCIETY,  limitation  on  amount  of  land  held 
by,  §  596. 
See*  Religious,  Social,  and  Benevolent  Corporations. 
FURTHER  ASSURANCE,  covenant  of,  §  1733. 

Covenant  runs  with  land,  §  1463. 
FUTURE,  present  includes,  §  14. 

Representation  as  to,  effect  of,  §  2574. 
Warranty  as  to  future  event,  §§  2608,  2609. 
FUTURE    ESTATE,   may   be   limited   on   termination  by 
any  means  of  precedent  estate,  §  767. 
May  be  limited  without  intervention  of  a  precedent 

estate,  §  767. 
Remainder,  future  estate  when  called,  §  769. 
Remainders:    See  Remainders. 
Right  of  owner  to  use  easements,  §  808. 
See  Future  Interests. 
FUTURE  INJURIES,  damages  for,  §  3283. 
FUTURE  INTERESTS,  accumulations:  See  Accumulations. 
Alternative,  may  be  in,   §   696. 
Are  vested  or  contingent,  §  693. 


FUTURE    INTERESTS — GENDER.  887 

Contingent,  when,   §   695. 

Defeat,  birth,  of  posthumous  child  defeats,  when,  § 
739. 

Defeat,  what  defeats,  §  741. 

Defeated,  not  by  any  act  of  owner  of  intermediate  es- 
tate, §  740. 

Defeated,  not  by  determination  or  destruction  of  in- 
termediate estate,   §§  741,  742. 

Defined,   §   690. 

Heirs  and  issue,  meaning  of,  §  1071. 

How  may  be  defeated,  §  740. 

Lien  may  be  created  on,  §  2883. 

Uen  on,  when  attaches,  §  2883. 

Not  void  because  it  may  be  defeated,  §  740. 

Not  void  because  of  improbability  of  contingency, 
§  697. 

Pass  by  will  and  transfer  same  as  present  interests, 
§  699. 

Power  of  appointment,  effect  of  on,  §  781. 

Rights  of  posthumous  child,  §  698. 

Suspending  power  of  alienation,   §§  715,  716.   ' 

Time  of  creation  of,  §  749. 

Vested,  when,  §  694. 

What  only  recognized  by  code,  §  703. 

Who  entitled  to  income  where  no  disposition  of  It,  i 
733. 

GAME,  right  to  take,  §§  801,  802. 
GAMING  insurance,  void,  §  2558. 
GAS  CORPORATION,   application  for  gas  to  use,   §   629. 

Damages  for  refusal  to  furnish  gas,  §  629.. 

Deposit  as  condition  for  furnishing  gas,  §  630. 

Inspection  of  meters,  liability  for  refusing,  §  631. 

Inspection  of  meters,  right  to,  §  631. 

Meters,  agent  of  corporation  may  inspect,  §  631. 

Meters  to  be  used,  §  628. 

Penalty  for  refusal  to  furnish  gas,  §  629. 

Privilege  to  be  obtained  from  city  or  town,  §  628. 

Refusal  to  furnish  gas,  §  629. 

Shutting  off  gas  for  refusal  to  pay,  §  632. 
GENDER  of  words  in  code,  §  14. 


888  GENERAL    AVERAGE — GOOD-WILL. 

GENERAL  AVERAGE,  adjusted  how,  §  2152. 

Adjustment,  validity,  §  2152. 

Defined,    §    2148. 

Goods  stored  on  deck,  §  2154. 

In  general,  §§  2148-2155. 

Insurance,  free  from,  §  2711. 

Marine  insurer  liable  for,  §§  2711,  2744. 

Shipmaster  may  adjust,   §   2388. 

Valuation,  time  of  ascertaining,  §2153. 

Values,  ascertained  how,  §  2153. 
GIFT,  ademption  of  legacy,  §  1357. 

Causa  mortis,  defined,  §  1149. 

Causa  mortis,  effect  of  will  on,  §  1152. 

Causa  mortis,  presumed  when,   §   1150. 

Causa  mortis,  revocation  of,  §  1151. 

Causa  mortis,  treated  as  legacy,  when,   §  1153. 

Community  property,  of,  §  172. 

Defined,   §   1146. 

Delivery  necessary,  §  1147. 

Made  how,  §  1147. 

Revocable,  not,  §  1148. 

Revocation  of,  bona  fide  purchaser,  §  1151. 

Revocation  of  gift  causa  mortis,  §  1151. 

Satisfying  before  death,  §  1367. 

Subscribing  witness,  to,  §§  1282,  1283. 
GOATS:     See  Animals. 

GOOD   FAITH,   agent  indemnified  for  advance  made  In, 
§  2344. 

Agent,  whether  bound  by  act  in,  §  2343. 

Offer  of  performance,  to  be  in,  §  1493. 

Partner,,  bound  to  highest,  §  2411. 

Partner,  when  not  bound  by  act  not  in,  §  2431. 

Principal  bound  to  persons  acting  in,  §  2334. 

Trustee,  bound  to  highest,  §  2228. 
GOOD-WILL,  definition,  §  992. 

Does  not  include  right  to  use  name,  §  92. 

Is  transferable,   §  993. 

Of  business,  §§   992,  993. 

Ownership,  subject  of,  §  655. 

Partner  may  not  dispose  of,  §  2430. 

Property,  is,  §  655. 


GOOD-WILL — GUARANTY.  889 

Sale  of,  restraint  of  trade,  §  1674. 
Subject  of  ownership,   §   655. 
Warranty  on  sale  of,  §  1776. 
GRACE,  days  of,  not  allowed,  §  3181. 
GRANT,  defined,  §  1053. 

Includes  whatever  is  essential  to  use,  §  3522. 

Power  to  revoke  or  modify,  when  deemed  executed, 

§§    1229,    1230. 
Re-entry,  when  and  how  made,  §  791. 
Time  of  creation  of  interest  created  by,  §  749. 
See  Conveyance. 
GREATER  contains  less,  §  3536. 
GROWING  CROP:     See  Crops. 

Lien  of  mortgage  continues  after  severance,  §  2972. 
GUARANTY:     See  Indemnity;   Suretyship. 
Acceptance,  notice  of,  §  2795. 
Collectibility,   of,    §    2800. 
Collectibility,  of,  liability,  recovery  and  discharge  on, 

§§  2801,  2802. 
Conditional,  guaranty  deemed  unconditional,  §  2806. 
Conditional,  obligation,  of,  liability  on,  §  2808. 
Consideration  for.  §  2792. 

Consideration,  writing  need  not  express,  §  2793. 
Construed,  how,  §  2806. 
Continuing,  defined,  §  2814. 
Continuing,  revocation  of,  §  2815. 
Defined,   §   2787. 

Demand  not  necessary  to  liability,  §  2807. 
Disability  of  principal,  effect  of,  §  2810. 
Enumeration  of  original,  §  2794. 
Factor  del  credere,  §  2794. 

Guarantor's  liability  cannot  exceed  principal's,  §  2809. 
Illegal  contract,  guarantor  not  liable  on,  §  2810. 
Incomplete  contract  of,  what  implied  in,  §  2799. 
Indemnified  guarantor,  effect  of  alteration  of  contract, 

§  2824. 
Indorser  has  rights  of  guarantor,  §  3121. 
Knowledge  of  principal  not  necessary,  §  2788. 
Letter  of  credit,  §§  2858-2866. 
Letter  of  credit  may  be  continuing,  §  2864. 
Liability  on,  accrues  when,  §  2807. 
Civ.  Code — 38 


890  GUARANTY — GUARDIAN    AND    WAiXD. 

Notice  not  necessary  to  liability,  §  2807. 

Notice  of  acceptance,  §  2795. 

Notice  of  default,  necessity  of,  §  2808. 

Original,  enumeration  of,   §   2794. 

Original,  when  deemed,  §  2794. 

Part  performance  as  affecting  obligation,  §  2822. 

Principal's  contract  void,  effect  of,  §  2810. 

Principal's  disability  does  not  affect,  §  2810. 

Reduced  by  partial  performance,  §  2822. 

Release,  alteration  of  contract  is  not  where  guarantor 
indemnified,   §   2824. 

Release  by  alteration  of  contract,  rescission  of  altera- 
tion does  not  affect,  §  2821. 

Release  of,  §  1543. 

Release  by  altering  obligation  of  principal,  §  2819. 

Release    by   impairing   remedies   against   principal,    § 
2819. 
•    Release,  delay  of  creditor  does  not  work  a,  §  2823. 

Release,  discharge  of  principal  by  act  of  law  does  not 
work  a,  §  2825. 

Release,  effect  of  part  performance  as  a,  §  2822. 

Release,  void  promises  do  not  work  a,  §  2820. 

Revocation  of  continuing,  §  2815. 

Statute  of  frauds,  §  1624. 

Surety  has  rights  of  guarantor,  §  2844. 

Time  when  liability  on,  accrues,   §  2807. 

Unconditional,  so  deemed,  unless,  §  2806. 

Written,  must  be,   §  2793. 

Written,  need  not  be,  when,  §  2794. 

See  Indemnity;   Suretyship. 
GUARDIAN  AND  WARD,  abduction  of  ward,  §  49. 

Ad  litem  guardian,  §  42. 

Appointment  of  by  will,   §  241. 

Appointment,  superior  court  may  appoint  guardian.  In 
what  cases,  §  243. 

Apprenticing  ward,  §  265. 

Corporation,  act  authorizing  to  act  as  executor,  p.  723. 

Custody  of  minors,  rules  for  awarding,  §  246.  , 

Custody  of  ward,  guardian  of  person  has,  §  248. 

Damages  for  holding  over,  §  3335. 

Death  of  joint  guardian,  §  252. 


GUARDIAN     AND     WARD.  S91 

Discharge  of  guardian  after  ward's  majority,  §  257. 

Education  of  vv'ard,  guardian  of  person  must  look  to,  § 
248. 

Father,  appointment  of  guardian  by,  §  241. 

Guardian  ad  litem,  §  42. 

Guardian  appointed  by  parent,  superseded  how,  §  254. 

Guardians  are  special  and  general,  §  238. 

Guardian    defined,    §  236. 

Guardian,  discharge,  when  entitled  to,  §  257. 

Guardian,  general,  defined,  §  239. 

Guardian,   general,   rules   for  appointing,   §  246. 

Guardian,  joint,  death  of,  §  252. 

Guardian,  removal  of,  grounds  for,  §  253. 

Guardian,  special,  defined,   §  240. 

Guardian  under  direction  of  court,  §  251. 

Guardian,  who  may  appoint  by  will  or  deed,  §  241. 

Guardianship,  dissolved  by  what,  §  254. 

Health  of  ward,  guardian  of  person  must  look  to, 
§   248. 

Illegitimate  child,  mother  may  appoint  guardian,  § 
241. 

Joint  guardian,  §  252. 

Joint  guardian,  death  of,  power  of  survivor,  §  252. 

Jurisdiction  over  guardian,  court  appointing  has  ex- 
clusive, §  245. 

Majority,  attainment  to  terminates  authority  of  guar> 
dian,  §  255. 

Marriage  of  ward  terminates  authority,  §  255. 

Mother  may  appoint  guardian,  when,  §  241. 

No  one  can  act  as  guardian  of  property  without  ap- 
pointment, §  242. 

Non-resident  minor,  guardian  of  property  may  be  ap- 
pointed, §  244. 

Orphan  asylum,  guardians  for  infants  maintained  in, 
p.  723,  Stats. 

Parental  authority   ceases  on  appointment  of,   §   204. 

Power  over  person  and  property,  guardian  has,  §  247. 

Property  of  ward,  duties  of  guardian  of  property, 
generally,   §  249. 

Relation,  confidential,  §  250. 

Release  by  ward  to  guardian,  §  256. 

Removal  of  guardian,  grounds  for,  §  253. 


892  GUARDIAN    AND    WARD — HIRING. 

Residence,  guardian  may  not  fix  out  of  state,  §  248. 
Residence  of  ward,  guardian  may  fix,  §  248. 
Stocliliolder,  guardian  as,  §  322. 
Stockholder,   liability   of  funds   in   guardian's   hands, 

§   322. 
Superseded,  guardian  is,  how,  §  254. 
Support  of  ward,   guardian   of  person   must  look   to, 

§  248. 
Suspended,  powers  of  guardian,  when  are,  §  255. 
Terminated,  guardianship  is  by  what  acts,  §  254. 
Termination  of  powers  of  guardian,  what  effects,  §  255. 
Testamentary  guardian,  power  to  appoint,  §  241. 
Ward  defined,  §  237. 

"Ward  may  own  stock  in  homestead,  §  561. 
Ward,  release  by,  §  256. 
GUEST:     See  Innkeepers. 

HABITUAL  INTEMPERANCE,  divorce  for,  §§  92,  107. 
HALF  BLOOD,  inheritance  by  kindred  of,  §  1394. 
HANDWRITING,  how  proved,  §  1199. 

When  may  be  proved,  §   1198. 
HEAD  OF  FAMILY,  husband  as,  §  156. 

See  Homestead. 
HEIR,  interpretation  of,  §  1071. 

Legitimacy,  may  dispute,  §  195. 

Minor's,  disaflBrmance  of  contract,  §  35. 

Of  tenant  for  life,  taking  as  purchaser,  §  779. 

Warranty  of  ancestor,  liability  on,  §  1115. 

Word  heirs  not  necessary  to  pass  fee,  §  1329. 
See  Succession. 

HIGHWAY,  conveyance  of  land  bounded  by  passes  what, 
§   1112. 
Franchises  for  railroads  on,  acts  relating  to,  pp.  759- 

763. 
Owner  presumed  to  own  to  center,  §  831. 
Railroad  crossing,  how  to  acquire  other  land,  §  472. 
Tolls  not  to  be  charged  on  public,  §  515. 
Water  company  must  not  obstruct,  §  551. 
See  Wagon  Road  Corporation. 
HIRING,  apportionment  of  hire,  §  1935. 
Care  required  of  hirer,   §   1928. 


HIRING — HOMESTEAD.  89S 

Charter  party  defined,  §  1959. 
Charter  party,   master  may  enter  into,   §  2376. 
Defined,  §  1925. 

Expenses,  extraordinary,  §  1957. 
Expenses,  ordinary,  §  1956. 
Expenses,  power  of  hirer  to  meet,  §  1957. 
Expenses,  who  must  bear,  §§  1956,  1957. 
Injuries,  hirer  to  repair,  §  1929. 
Letter's  obligations,  §  1955. 
Letter  to  put  thing  in  fit  condition,  §  1955. 
Lodgings  for  indefinite  time,  §  1944. 
Particular  use  for,  §  1930. 
Products  of  thing  belong  to  hirer,  §  1926. 
Quiet  enjoyment,  lessor  to  secure,  §  1955. 
Quiet  possession,  §  1927. 

Real  property  of.     See  Landlord  and  Tenant. 
Repairs,  letter's  obligation  as  to,  §  1955. 
Return  of  thing,   §   1958. 
Return  of  thing,  place  of,  §  1958. 
Ships,  of,  §  1959. 

Terminated  by  death  or  incapacity,  when,  §  1934. 
Terminated  by  destruction,  §  1933. 
Terminate,  hirer  may  before  end  of  term,  when,  §  1932. 
Terminates,  when,  §  1933. 
Terminate,  when  letter  may,  §  1931. 
Termination  before  time,  apportionment,  §  1935. 
See   Landlord   and  'Tenant;    Loan. 
HOLIDAY,  acts  not  to  be  done  on.  §  11. 
Business  days,  what  are,  §  9. 
Enumeration  of,  §  7. 
Falling  on  Sunday,  §§  7,  8. 
Last  day  falling  on,  excluded,   §  10. 
Maturity  of  negotiable  instrument  where  last  day  falls 

on,  §  3132. 
Performance  on  following  day,  §  11. 

HOMESTEAD:     See  Homestead  Corporation, 

Abandonment,  declaration  of,  §  1243. 

Abandonment,  declaration  of  not  effectual  unless  filed, 

§  1244. 
Abandonment  how,  §  1243. 
Acknowledging  conveyance  or  incumbrance.  §  1242. 


894  HOMESTEAD. 

Acknowledging   selection,    §§  1262,   1266. 
Appraisement,   notice  of  time  and  place  of  hearing, 

§   1248. 
Appraisement  of,  application  for,  made  how,  §  1246. 
Appraisement  of,  division  ordered  when,  §  1253. 
Appraisement  of,  filing  petition  for,  §  1247. 

Appraisement  of,  service  of  petition,  §  1248. 

Appraisement  of,  when  may  be  had,  §  1245. 

Appraisers,  appointment  of,  §  1249. 

Appraisers,  compensation  of,  §  1258. 

Appraisers,  duties  of,  §  1251. 

Appraisers,  oath  of,  §  1250. 

Appraisers,  report  of,  time  to  file,  §  1252. 

Appraisers,  report  of,  proceedings  on,  §§  1253-1259. 

Appraisers,  setting  oft  property  where  it  can  be  di- 
vided, §  1253. 

Community,  selecting  from,   §  1238. 

Complete,  when,  §§  1265,  1269. 

Consists  of  what,   §   1237. 

Conveyance  of,  acknowledgment  of,  §  1242. 

Conveyance  in  case  of  insanity  of  spouse,  p.  718,  Stata. 

Corporation:      See   Homestead   Corporation. 

Costs  of  proceedings  to  subject  to  creditor's  demand, 
§  1259. 

Death  of  spouse,  to  whom  descends,  §  1265. 

Debts,  for  what  liable,  §  1241. 

Debts,  liability  for,  §  1265. 

Declaration  must  contain  what,  §§  1263,  1267. 

Declaration  of  abandonment,  §§  1243,  1244. 

Declaration  of,  by  other  than  head  of  family  to  be 
acknowledged,  §  1266. 

Declaration  of,  recording,  §§  1262,  1264,  1268,  1269. 

Declaration  of  to  be  acknowledged  and  filed,  §  1262. 

Divorce,  how  disposed  of,  on,  §  146. 

Execution,  not  subject  to  except,  etc.,  §  1240. 

Execution,  when  subject  to,   §  1241. 

Exemption,  §§  1240,  1241. 

Exemption  of  proceeds  of  sale,  §  1257. 

From  what  property  may  be  selected,  §  1238. 

Head  of  family,  who  is,  §  1261. 

Incumbrance  of,  acknowledgment  of,  §  1242. 


HOMESTEAD — HOMESTEAD    CORPORATION.  895 

Insanity  of  spouse,  conveyance  or  mortgage  in  case  of, 
p.  718,  Stats. 

Liability  of,  in  general,  §  1265. 

Liens,  for  what  liable,  §  1241. 

Mortgages,  for  what  liable,  §  1241. 

Mortgage  of,  manner  of,  §  1242. 

Mortgage  in  case  of  insanity  of  spouse,  p.  718,  Stats. 

Other  persons,  of,  selection  of,  §  1266. 

Probate,  of  what  consists,  §  1237. 

Property  from  which  may  be  selected,  §  1238. 

Recording  declaration,   §§   1262,  1264,  1268,  1269. 

Recording    selection,    §§  1262,    1268,    1269. 

Sale  of,  bids  which  may  be  received,  §  1255. 

Sale  of,  disposition  of  proceeds,  §  1256. 

Sale  of,  exemption  of  proceeds,  §  1257. 

Sale  of,  when  may  be  directed,  §  1254. 

Selected  from  what  property,  §  1238. 

Selection  by  other  persons,  acknowledgment  of,  §  1266. 

Selection  by  other  persons,  declaration  to  be  recorded 
in  county,  §  1268. 

Selection  by  other  persons,  declaration  to  contain 
what,  §  1267. 

Selection  by  other  persons,  land  becomes  homestead, 
when,  §  1269. 

Selection  by  persons  other  than  head  of  family,  man- 
ner of,  §  1266. 

Selection  from  wife's  property,  consent  necessary, 
§  1239. 

Selection,  mode  of,  §  1262. 

Selection  of  homestead  of  other  persons,  §  1266. 

Separate  property  of  spouse,  §  1238. 

Succession  to  on  death  of  spouse,  §  1265. 

Tenure  by  which  held,  §  1265. 

Title  perfected,  when,  §§  1265,  1269. 

Value,  limitation  of,  §  1260. 

Value,  where  selected  by  head  of  family,  §  1260. 

What  consists  in,  §  1237. 

What  may  be  selected  from,  §  1238. 

What  may  not  be  selected  from,  §  1239. 

When  complete,   §§  1265,  1269. 

HOMESTEAD  CORPORATION,  annual  report  and  its  pub- 
lication, §§  565,  566. 


896       HOMESTEAD    CORPORATION— HUSBAND  AND  WIFE. 

Articles,  copy  of  to  be  furnished  stoclcliolder,   §  558. 

Borrowing  aiid  loaning  money,  §  5G0. 

By-laws,  copy  of  to  be  furnished  stockholder,  §  558. 

By-laws  to  specify  what,  §  558. 

Delinquent  shares,  advertisement  and  sale  of,  §  559. 

Forfeited  shares,  advertisement  and  sale  of,  §  559. 

Forfeiture  for  owning  lands  in  excess  of  two  hundred 
thousand  dollars,   §   562. 

Forfeiture  for  speculating  in  lands,  §  562. 

Infants  may  own  stock,   §   561. 

Installments,    by-laws   to   specify   what,   respecting,    f 
558. 

Interest,  rate  of  on  borrowed  money,  §  560. 

Loaning  and  borrowing  money,  §  560. 

Married  women  may  own  stock  in,  §  561. 

Premiums,  payment  of,  §  564. 

Publication  of  annual  report,  §§  565,  566. 

Sale  of  delinquent  and  forfeited  shares,   §  559. 

Statute  authorizing  formation  of  corporations  to  pro- 
vide homesteads  for  members,  p.  718. 

Terminated  when  and  how,  §  563. 

Termination  of,  division  and  disposition  of  property, 
§  563. 

Termination  of,  dividends  on,  §  563 

Time  of  corporate  existence,  §  557. 

Wards  may  own  stock,  §  561. 

See  Homestead. 
HOTEL-KEEPER:  See  Innkeepers. 
HOSPITAL.    Corporation  for  hospital  purposes  cannot  take 

by  will  unless  expressly  authorized,  §  1275. 
HOURS  OF   LABOR,  minors,  of,  acts  regulating,  pp.  721, 

722. 
HUMBOLDT  COUNTY,  tolls  in,  §  514. 
HUSBAND  AND  WIFE,  abduction  of  spouse,  §  49. 

Children:      See  Parent  and  Child. 

Community,  consent  of  wife  to  convey  or  give,  §  172. 

Community,  conveyance  or  incumbrance  of  furniture, 
clothing,  etc.,  consent  of  wife,  §  172. 

Community  defined,  §  687. 

Community,  gift  by  husband,  §  172. 

Community,  includes  what,  §  164. 


HUSBAND    AND    WIFE.  897 

Community,    limitation    of    action    to    show    property 

was,  §  164. 
Community,  on  tiusband's  death,  subject  to  debts  and 

allowances,   §   1402. 
Community,  power  of  husband  over,  §  172. 
Community,  testamentary  disposition  of,  §  172. 
Community,   when   not   liable   for   wife's   contracts,    § 

167. 
Contracts  between  and  with  others,  capacity  to  make, 

§   158. 
Contract  between,  not  to  impair  their  legal  relations, 

§  159. 
Contract  for  separation,  §§  159,  160. 
Co-tenancy  between,  §  161. 
Curtesy  not  allowed,  §  173. 
Custody  of  Children:     See  Custody  . 
Custody  of  children,  when  wife  may  obtain,  §  214. 
Dividends    on   stock   payable    to   married   woman,    §§ 

325,  575. 
Domicile,  husband  may  fix,  §§  103,  156. 
Domicile  of  wife  on  suit  for  divorce,  §  129. 
Domicile,  on  separation  of,  §  129. 

Domicile,  selecting  unfit,  amounts  to  desertion,  §  104. 
Dower  not  allowed,   §  173.  • 

Dwelling,  neither  can  be  excluded  from  other's,  §  157. 
Head  of  family,  husband  as,  §  156. 
Homestead,  wife  may  own  stock  in,  §  561. 
Husband's    rights   and    liabilities    respecting    stepchil- 
dren, §  209. 
Husband's  rights  of  as  head  of  family,   §  156. 
Husband's    separate    property    not    liable    for    wife's 

debts  before  marriage,  §  170. 
Husband's  separate  property  includes  what,  §  163. 
Inheritance  by:     See  Succession. 
Interests  in  property  separate,   §  157. 
Inventory  of  wife's  estate,  filing  is  notice,  §  166. 
Inventory  of  wife's  separate  estate,  §  165. 
Joint  tenancy  between,  §  161. 

Legitimacy  of  issue:      See  Bastards;   Legitimacy. 
Marriage  settlement  by  minor,  §  181. 
Marriage  settlement,  effect  of  recording,   §  180. 
Marriage  settlements,  how  executed,  §  178. 


888  HUSBAND    AND    WIFE. 

Marriage  settlement  to  be  acknowledged  and  recorded, 
§§  178,    179. 

Married  woman.    See  Married  Woman. 

Mode  of  living,  husband  may  choose,  §  156. 

Mutual  obligations  of,  §  155. 

Necessaries  furnished  wife,  liability  of  husband,  §  174. 

Obligations,  mutual,  §  155. 

Presumption  on  conveyance  to,  §  164. 

Presumption  when  property  conveyed  to  wife,  §  164. 

Presumption  when  property  conveyed  to  wife  and  third 
person,  §  1G4. 

Property   interests,    separate,    §  157. 

Property,  neither  has  interest  in,  of  other,  §  157. 

Property,  of,  modes  by  which  may  be  held,  §  161. 

Property  rights  of,  code  sections  governing,  §  177. 

Separate  property,  what  is,  §§  162,  163. 

Separate  property,  presumption  where  property  con- 
veyed to  wife,  §  164. 

Separation,  consideration  of  contract  for,  §  160. 

Separation,  contract  for,  §§  159,  160. 

Separation,  custody  of  children,  §  214. 

Settlement,  marriage,  by  minor,  §  181. 

Settlements,  marriage,  effect  of  recording,  §  180. 

Settlements,   ftiarriage,   how   executed,   §  178. 

Settlements,  marriage,  to  be  acknowledged  and  re- 
corded,  §  179. 

Signature  of  husband  not  necessary  on  transfer  of 
stock,   §  325. 

Signature  of  husband  not  necessary  to  proxy,  §  325. 

Stepchildren,  husband's  duties  and  liabilities  as  to, 
§  209. 

Stock,  transfer  of  by  married  women,  §  325. 

Support  of  husband,  when  wife  liable  for,  §  176. 

Support  of  wife,  husband  liable  for,  §  174. 

Support  of  wife,  husband  not  liable  for,  when  aban- 
doned by  wife,  §  175. 

Support  of  wife  living  separate  by  agreement,  husband 
not  liable  for,  §  175. 

Tenants  in  common,  §  161. 

Wife's  earnings  not  liable  for  husband's  debts,  §  168. 

Wife's  earnings  separate  property,  when  living  apart, 
§  169. 

Wife's  estate,  inventory  of,  §§  165,  166. 


HUSBAND  AND  WIFE— INCOME.  SH 

Wife's  property  liable  for  her  debts,  §  171. 
Wife's  property  not  liable  for  husband's  debts,  §  171. 
Wife's  separate  property  includes  what,  §  162. 
Wife:    See  Married  Woman. 
HYDRAULIC  MINING,  §§  14:^^,  1425. 
Defined,  §  1425. 
Wh^re  can  be  carried  on,   §  1424. 

IDENTIFICATION  of  contracting  parties,  §  1558. 
IDIOT:     See  Insane  Persons. 
IDLE  ACT,  law  does  not  require,  §  3532. 
ILLEGITIMATE:    See  Bastards;  Legitimacy. 
IMPOSSIBILITY,   ascertaining   consideration,   of,    §§   1612, 
1613. 

Ascertaining  object  of  contract,  of,  §  1596. 

Condition  void  because  of,  §  1441. 

Defined,  §  1597. 

EJverything  deemed  possible  except,  etc.,  §  1597. 

Law  does  not  require,  §  3531. 

Of  condition  precedent,  §  1347. 

Performance,  of,  when  avoids  contract,  §  1598. 

What  deemed  to  be  possible,  §  1597. 
IMPOTENCY  as  ground  for  annulment  of  marriage,  §  82. 
IMPROBABILITY  of  contingency,  future  interest,  §  697. 
INCAPACITY,    physical,    ground   for    annulling   marriage, 
§  82. 

Terminates  hiring,  §  1934. 

Terminates  agency,  §  2355. 

To  consent,  ground  for  nullity  of  marriage,  §  82, 

To  contract,   §§  39,  40. 

See  Insane  Persons. 
INCEST,  judicial  declaration  of  incestuous  marriage,   §80. 

What  marriages  are  incestuous,  §  59. 
INCIDENT  passes  with  principal,  §§  1084,  1656,  3540. 

Transfer  of,  does  not  pass  principal  thing,  §  1084. 
INCOME,  accumulations  of,  §§  722-733. 

Accumulations:    See  Accumulations. 

Allowance  out  of,  §  726. 

Bequest  of,  when  accrues,  §  1366. 

Defined,  §  748. 
i  Disposition  of,  governed  how,  §  722. 

Undisposed  of,  who  entitled  to,  §  733. 


900  INCREASE — INDEMNITY. 

INCREASE:     See  Accession. 

Freightage  not  cliarged  for  natural,  of  freight,  §  2139. 

Pledged,  of  property,  §  2989. 

Property,  of,  belongs  to  owner,  §  732. 

Property,  of  hired  belongs  to  hirer,  §  1926. 

Property,  of  lent  belongs  to  lender,  §  1885. 
INCUMBRANCE:    See  Chattel  Mortgage;  Lien;  Mortgage. 

Damages  for  breach  of  covenant  of,  §  3304. 

Implied  covenants  against,  §  1113. 

Recorded  instruments  as  notice  to  although  defective, 
curative  act,  §  1207. 
INCUMBRANCER.    Grant  as  revocation  in  favor  of,  when, 
§   1229. 

Grant,  how  far  conclusive  as  to,  §  1107. 

Incumbrancer  defined,  §  1114. 

Incumbrance  imposed  on  devised  property,  §  1302. 

Incumbrance  includes  what,  §  1114. 

Instruments,  when  void  against,  §  1227. 

Instruments,  when  not  void  against,  §  1228. 

Lien  of  seller  or  buyer  not  valid  against,  §  3048. 

Measure  of  damages  for  breach  of  covenant  against 
Incumbrance,  §  3305. 

Mortgage,  effect  of,  against  subsequent,  §  2957. 

Obligation     respecting     real     property     not     enforced 
against  subsequent,  §  3395. 

Resulting  trust  not  to  prejudice,  §  856. 

Rights  of  under   devisee,   when  not  impaired  by  his 
conveyance,  §  1364. 

Transfers  void  against,  §  3440. 
INDEMNITY:    See  Guaranty;   Suretyship. 

Actions  to  recover,  §  2777. 

Agents,  acts  of  indemnity  covers,  §  2775. 

Agreement  of,  covers  acts  of  agents,  §  2775. 

Bond  of,  on  transfer  of  stock  by  non-resident,  §  326.   ■ 

Defenses  to  actions  for  recovery  of,  §  2778. 

Defined,  §  2772. 

Includes  costs  of  defense,  §  2778. 

Interpretation  of,  rules  for,  §  2778. 

Judgment  for,  conclusiveness  of,  §  2777. 

Liability  of  indemnitor,   §  2778. 

Liability  of  indemnitor  is  joint  or  several,  §  2777. 


INDEMNITY— INDORSEMENT.  901 

On  payment  of  lost  negotiable  instrument,  §  3137. 

Several,  to,  effect  of,  §  2776. 

Sureties  on,  in  legal  proceedings  called  bail,  §  2780. 

Surety,  when  person  indemnifying  is  entitled  to  rights 
of,  §  2779. 

Unlawful  act,  against,  §§  2773,  2774. 

Wrongful  act,  against,  §§  2773,  2774. 

See  Guaranty;  Suretyship.  * 

INDENTURE:    See  Apprenticeship. 
INDICTMENT,  nuisance,  for,  §§  3491,  3492. 
INDORSEMENT:     See  Negotiable  Instruments. 

Apprenticeship,  indentures  of,  §§  266,  275. 

Bill  of  lading,  of,  §  2127. 

Marriage  certificate,  §  73. 

Non-negotiable  instrument,  of,  §  1459. 

Stock,  necessary  to  transfer,  §  324. 

Surveyor-general's,  on  plat  of  right  of  way,  §478. 

INFANT,  abduction,  §  49. 

Accumulations,  §§  722-733. 
Action  by,  guardian  must  conduct,  §  42. 
Action,  minor  may  enforce  rights  by,  §  42. 
Agent,  appointment  of,  §  33. 
Apprenticing:    See  Apprenticeship. 
Building  and  loan  shares  may  be  owned  by,  §  648. 
Contract,  competency  to,  §§  1556,  1557. 
Contract  rights  of,  §  34. 
Contracts  of,  validity,  §§  33,  34. 
Custody  of,  code  provisions  regulating,  §  32. 
Delegation  of  power  by,  §  33. 
Disabilities  of,  §  33. 
Disaffirmance  of  contracts,  §  35. 
Disaffirmance  of  contract  for  necessaries,  §  36. 
Disaffirmance  of  contracts,  limitation  on,  §  37. 
Disaffirmance  of  contracts  of,  by  personal  representa- 
tive, §  35. 
Disaffirmance  of  contracts,  return  of  consideration,  §  35. 
Employment  of,  acts  regulating,  pp.  721,  722. 
En  ventre,  rights  of,  §  29. 
Exemplary  damages  against,  §  41. 
Guardian  must  conduct  action  by,  §  42. 
Guardians:     See  Guardian  and  Ward. 


802  INFANT— INJUNCTION. 

Head  of  family,  as,  §  12G1. 

Homestead  stock  may  be  owned  by,  §  561. 

Hours  of  labor,  act  regulating,  pp.  721,  722. 

Land  and  building  shares  may  be  owned  by,  §  643. 

Limit  of  term  of  lease  of  property  of  infant,  §  718. 

Marriage,   conditions   restraining,   §  710. 

Marriage  of,  §  56. 
,         Marriage  of,  annulment  of,  §  82. 

Marriage  settlement  by,  may  be  made,  §  181. 

May  make  and  withdraw  deposits  in  savings  and  loan 
society,  §  575. 

Necessaries,  contract  for  not  to  be  disaffirmed,  §  36. 

Period  of  minority  computed,  how,  §  26. 

Personalty  not  in  possession,  contracts  respecting,  §  33. 

Posthumous  children,  property  rights  of,  §  698. 

Real  property,  contracts  respecting,  §  33. 

Stock  of,  how  represented  at  corporate  election,  §  313. 

Support  of,  out  of  accumulation,  §  726. 

Torts  of,  liability,  §  41. 

Unborn  child,  rights  of,  §  29. 

Who  are,  §  25. 
INFORMATION,  nuisance,  for,  §§  3491,  3492. 

Regulated  by  Penal  Code,  §  3492. 
See  Insurance. 
INHERITANCE.     General  rules  of  descent,  §  1386. 

Words  of,  not  necessary  to  pass  fee,  §  1072. 
See  Succession. 

INJUNCTION,  §  3368. 

Allowed  in  what  cases,  §  3422. 

Allowed,  not,  in  what  cases,  §  3423. 

Court   of   another   state,   proceedings   in  not   stayed, 

§  3423. 
Federal  courts,  proceedings  in  not  restrained,  §  3423. 
Forfeiture,  not  enforced,  §  3369. 
Grounds  for  granting,  §  3423. 
Is  provisional  or  final,  §  3420. 
Legislative  act  of  municipal  corporation  not  restrained, 

§  3423. 
Multiplicity  of  suits,  to  prevent,  §  3422. 
Office,  when  not  granted  in  cases  respecting,  §  3423. 
Penal  law,  not  granted  to  enforce,  §  3369. 
Penalty,  not  enforced,  §  3369. 


INJUNCTION — INSANE    PERSONS.  903 

Preveutive  relief  is  granted  by,  §  3420. 

Preventive  relief,  how  given,  §  3368. 

Provisional,    regulated    by    Code   of   Civil    Procedure, 

§   3421. 
Statute,  enforcement  of  not  restrained,  §  3423. 
Trust,  in  case  respecting,  §  3422. 
INJURY,  contract  for  exemption  from,  §  1668. 
Obligation  to  abstain  from,  §  1708. 
Right  of  protection  from,  §  43. 
Right  to  defend  from,  §  50. 

Threat  renders   contract  voidable,    §§  1569,  1570. 
See  Damages. 
INNKEEPER,  liability  of,   §  1859. 

Inability  of,  how  exempted  from,  §  1860. 
Lien  of,  §  1861. 

Posting  statement  of  charges,  etc.,  §  1863. 
Sale  of  unclaimed  baggage  for  storage,  etc.,  §  1862. 
INSANE   PERSONS,  agency  terminated  by  incapacity  of 

parties,  §§  2355,  2356. 
Asylum,  proceedings  when  placed  in  by  superior  court, 

§  258. 
Asylum,  right  of  investigation  before  jury  when  placed 

in,  §  258. 
Asylum,  superior  court  power  to  place  in,  §  258. 
Contract,  competency  to,  §§  38,  39,  1556,  1557. 
Contracts  of,  rescission  of,  §  39. 
Custody  of,  code  provisions  regulating,  §  32. 
Employment    terminated    by    incapacity    of    Rartlea, 

§§  1996,  1997. 
Exemplary  damages  against  insane  person,  §  41. 
Homestead,   alienation  or  mortgage  of  where  spouse 

becomes  insane,  p.  718,  Stats. 
Insanity  revokes  proposal  to  contract,  §  1587. 
Lease  of  estate  of,  limit  of  term  of,  §  718. 
Marriage  of,  annulment  of,  §  82. 
Necessaries,  liability  for,  §  38. 
Non-resident,  guardian  of  property  may  be  appointed, 

§  244. 
Powers  of;  after  incapacity  adjudged,  §  40. 
Rescission  of  contracts  of,  §  39. 
Restoration,  certificate  of,  evidence  of  legal  capacity, 

§  40. 


904  INSANE    PERSONS — INSTRUMENTS. 

Stock  of,  how  represented  at  corporate  election,  §  313. 
Superior  court  may  appoint  guardian  of,  in  what  cases, 

§   243. 
Torts  of,  liability,  §  41. 
Trustee  discharged  by  insanity,  §  2282. 
INSOLVENCY,  consignor  may  stop  goods  in  transit  on,  of 

consignee,  §§  30,  7G. 
Defined,  §§  3077,  3450. 
Of  consignee,  §  3077. 
Of  principal  in  guaranty,  §  2802. 
Of  special  partnership,  §  2491. 

Of  special   partnership,   preferential   assignments  for- 
bidden, §  2496. 
See  Assignment  for  Creditors;  Fraudulent  Convej;ance; 

Stoppage  in  Transit. 
INSPECTION  of  things  sold  with  warranty,   §  1785. 

Books  of  mining  corporation,  open  to,  p.  749,  Stats. 
INSTRUMENTS,  acts  curing  defects  in,  §  1207. 

Affecting  title  to  real  property,  ownership  of,  §  994. 

Burden  of  proof,  showing  want  of  consideration,  §  1615. 

By  attorney  in  fact,  executed,  how,  §  1094. 

By  married  women,  acknowledged,  how,  §  1093. 

Cancellation  of,  in  general,  §§  3412-3414. 

'Certain  non-negotiable  written,  transferable,  §  1459. 

Containing  condition  wrong  per  se,  void,  §  709. 

Distinction   between   sealed   and   unsealed   abolished, 

§  1629. 
Evidencing  title  declared  by  judgment,  how  proved  by 

record,  §  1159. 
Handwriting  may  be  proved,  when,  §  1198. 
In  writing  prima  facie  import  consideration,  §  1614. 
Judgment  proving,  §  1203. 

OflBlcers  authorized  to  take  proof  of,  powers  of,  §  1201. 
Proof  of,  action  for,  and  effect  of  the  judgment,  §§  1203, 

1204. 
Proof  of,  execution  of,  how  made,  §§  1185,  1198. 
Proof  of,  execution  of,  when  not  acknowledged,  §  1195. 
Proof  of,  witness  to  prove  what,  §  1197. 
Witness   proving   to    be   personally    known   to   officer 

taking  proof,  §  1196. 
Proved    by    other    than    subscribing    witness,    how 

recorded,  §  1162. 


INSTRUMENTS — INSURANCE,    I,    II.  905 

Unrecorded,    valid    as    between    parties    with    notice, 
§  1217. 
INSULT,   right  of  protection  from,    §  43. 
INSURANCE. 

I.     Object,  definition  and   kinds  of;   code  provisions 

governing. 
II.     Parties  to;  who  may  insure  or  be  insured. 

III.  Insurance     by     agent,     factor,     mortgagor,     part 

owner,   partner  or  trustee.  • 

IV.  Validity   and    rescission   of. 

V.  Insurable  interest;  what  may  be  insured  against. 

VI.  Concealments   and    representations. 

VII.  Warranties. 

VIII.  Policy. 

IX.  Premium. 

X.  Change  or  transfer  of  interest. 

XI.  Over-insurance;    double    insurance;    reinsurance. 

XII.  Loss. 

XIII.  Questions  relating  particularly  to  fire  insurance. 

XIV.  Questions  relating  particularly  to  life  insurance. 
XV.  Questions  relating   particularly  to  marine   insur- 
ance. 

Commissioner:     See  Insurance  Commissioner. 

Companies:     See  Insurance  Corporation. 

Fraternal  societies  exempt  from  insurance  laws,  §  451. 

I.  Object,    definition     and     kinds    of;     code     provisions 

governing. 

Code  provisions  govern  all  kinds  of  insurance,  §2534. 

Defined,  §  2527. 

Indemnity,  §§  2772-2777. 

Kinds  of,  §  2533. 

Sole  object  of  is  indemnity  of  insured,  §  2551. 

Accident   companies:      See   Insurance   Corporation. 

Mutual  companies:     See  Insurance  Corporation.    • 

Title   insurance   companies:     See   Insurance   Corpora- 
tion. 

II.  Parties  to;  who  may  insure  or  be  insured. 

Any  one  except  public  enemy  may  be  insured,  §  2540. 
Insured,  who  is,  §  2538. 
Insured,  who  may  be,  §  2540. 


006  INSURANCE,    III,    IV,   V,   VI. 

Parties  are  insured  and  insurer,  §  2538. 
WliQ  may  insure,  §  2539. 

III.  Insurance  by  agent,  factor,  mortgagor,  part  owner, 

partner  or  trustee. 
Agent,  by,  form  of  policy,  §  2588. 
Factor  may  insure,  §  2368. 
Mortgaged  property,  insurance  on,  §  2541. 
By  mortgagor,  §  2542. 

Partner,  by,  rights  of  co-partner,  form  of  policy,  §  2590. 
Part  owner,   by,   rights   of  co-owner,   form  of  policy, 

§  2590. 
Trustee,  by,  form  of  policy,  §  2589. 

IV.  Validity  and  rescission  of. 
Gaming  policy,  void,  §  2558. 

Rescind,  time  for  exercising  right  to,  §  2583. 
Stipulation  for  payment  irrespective  of  interest  void, 

§  2558. 
Void,  if  without  insurable  Interest,  §  2551. 
Void,  when,  §  2558. 

V.  insurable  interest;   what  may  be  insured  against. 

Contingent  or  expectant  interest  not  insurable,  §  2549. 

Insurable  interest  defined,  §  2546. 

Insurable  interest  in  expectancy,  §§  2547,  2549. 

Insurable  interest  in  life,  §  2763. 

Insurable  interest  in  life,  assignment  to  one  without, 

§  2764. 
Insurable  interest,  insurance  without,  void,  §  2551. 
Insurable  interest  may  consist  in  what,  §  2547. 
Insurable  interest,  measure  of,  §  2550. 
Insurable  interest  of  carrier  or  depositary,  §  2548. 
Insurable  interest  in  property,  what  constitutes,  §§  2546, 

2547. 
Insurable  interest,  time  when  must  exist,  §  2502. 
Lottery  not  insurable,  §  2532. 
What  events  may  be  insured  against,  §  2531. 

VI.  Concealments  and   representations. 
Concealment  defined,  §  2561. 
Concealment,  effect  of,  §  2562. 

Concealment,  facts  which  need  not  be  disclosed,  §  2564. 
Concealment,  information  of  one's  own  judgment  need 
not  be  communicated,  §  2570. 


INSURANCE,   VI,   VII.  907 

Concealment,   matters   of   opinion   need   not   be    com- 
municated, §  2570. 
Concealment,  modification  of  contract  and  representa- 
tions in  case  of,  §  2582. 
Concealment,  provisions  as  to  apply  to  modification  of 

contract,  §  2582. 
Concealment,  what  facts  to  be  disclosed,  §  2563. 

Disclosed,  facts  that  must  be,  §  2563. 

Disclosed,   facts   that   need   not  be    without   inquiry, 
§  2564. 

Fraudulent  omission  to  communicate  facts,  §  25bii. 

Interest  of  insured,  necessity  of  communicating,  §  2568. 

Materiality  of  facts,  test  of,  §  2565. 

Matters  each  party  bound  to  know,  §  2560. 

Matters  that  must  be  disclosed,  §  2563. 

Matters  that  need  not  be  communicated  without  In- 
quiry, §  2564. 

Omission  to  communicate  facts,  intentional  or  fraudu- 
lent, §  2569, 

Representation  as  to  future,  effect  of,  §  2574. 

Representation,  effect  of  falsity,  §  2580. 

Representation  false,  when  deemed  to  be,  §  2579. 

Representation  interpreted,  how,  §  2573. 

Representation,  materiality  of,  how  determined,  §  2581. 

Representation  may  be  made,  when,  §  2572. 

Representation  may  be  oral  or  written,  §  2571. 

Representation  may  be  altered  or  withdrawn,   when, 
§    2576. 

Representation  may  not  qualify  policy,  §  2575. 

Representation  may  qualify  warranty,  §  2575. 

Representations,  provisions  as  to  apply  to  modification, 
§  2582. 

Representation  refers  to  what  time,  §  2577. 

Representing  information,  §  2578. 

Waiver  of  communication  of  facts,  §  2567. 
VII.     Warranties. 

As  to  future,  §  2608. 

As  to  past  or  present,  §  2607. 

Breach  without  fraud,  §  2612. 

Form  of,  §  2604. 

Fraudulent,   §  2569. 

Is  express  or  implied,  §  2603. 


908  INSURANCE,   VII,   VII,    IX,   X. 

Must  be  in  policy,  §  2605. 

Performance    of,    relating    to    future,    excused,    when, 

§  2609. 
Past,  present  or  future,  §  2606. 

Violation  of,  policy  may  provide  for  avoidance,  §  2611. 
Violation  of,  avoids  policy,  §  2610. 

VIII.  Policy. 
Defined,  §  2586. 

Description  of  insured  in  general  terms,  who  can  claim 

benefit,  §  2591. 
Form  of,  on  insurance  by  agent,  §  2588. 
Form  of,  on  insurance  by  part  owner  or  co-partner, 

§  2590. 
Form  of,  on  insurance  by  trustee,  §  2589. 
How  issued  and  signed,  §  416. 
In  general  terms,  §  2591. 
Is  open  or  valued,  §  2594. 
Material  violation  avoids,  §  2610. 
May  provide  for  avoidance,  §  2611. 
Not  transferred  by  transfer  of  thing  insured,  §  2593. 
Open,  defined,  §  2595. 

Open  policy,  marine,  estimating  loss  under,  §  2741. 
Running,  defined,  §  2597. 
Valued  policy,  §  2757. 
Valued  policy  defined,  §  2596. 
What  must  be  stated  in,  §  2587. 
Whose  interest  covered  by,  §  2588. 

IX.  Premium. 

Contribution  in  case  of  over-insurance,  §§  2621,  2622. 
Earned,  when,  §  2616. 

Effect  of  .acknowledging  receipt  of,  in  policy,  §  2598. 
How  payable  to  mutual  life,  etc.,  company,  §  446. 
Receipt  of  premium,  effect  of  acknowledging  in  policy, 

§  2598. 
Return  of,  for  fraud,  §  2619. 
Return  of,  when  allowed,  §  2617. 
Return  of,  when  not  allowed,  §  2618. 
Return  of,  when  over-insurance  by  several,  §  2620. 

X.  Change  or  transfer  of  interest. 

Alienation,  joint  owners  or  partners,  transfer  between 

does  not  avoid,  §  2557. 
Change  of  interest  after  loss,  §  2554. 


INSURANCE,   X,    XI,   XII.  909 

Change   of   interest   between   partners,   joint   owners, 

etc.,  effect  of,  §  2557. 
Change  of  interest  by  death  of  insured,  §  2556. 
Change  of  interest  in  one  of  several  things,  §  2555. 
Change  of  interest  in  thing  insured,  effect  of,  §§  2558- 

2557. 
Mortgagee,  assignment  to  of  insured  thing,  §  2541. 
Partners,  transfer  between  does  not  avoid,  s  2557. 
Policy,  transfer  of  thing  insured,  effect  of,  §  2593. 
Successive  owners,  policy  may  be  drawn  to  inure  to, 

§  2592. 
Transfer  of  claim  for,  contract  not  to,  is  void,  §  2599. 
Transfer  of  insured  thing  not  transfer  policy,  §  2593. 
Transfer  of  interest  in  part  of  thing  insured,  effect  of, 

§  2553. 
Transfer  of  thing  insured,  effect  of,  §§  2553-2557. 

XI.  Over-insurance;     double    insurance;     reinsurance. 
Over-insurance,  contribution  to  premium,  §§  2621,  2622. 
Over-insurance,   return  of  premium,   §   2620. 
Double,  contribution,  §  2642. 

Double,  defined,  §  2641. 
Reinsurance,  §§  426,  428. 
Reinsurance  defined,  §  2646. 
Reinsurance,  disclosures  required,  §  2647. 
Reinsurance,  original  insured  no  interest  in,  §  2649. 
Reinsurance  presumed  to  be  against  liability,  §  2648. 

XII.  Loss. 

Exoneration  of  insurer,  what  amounts  to,  §  2629. 

Interest  covered  by  policy,  §  2588. 

Loss,  certificate  of,  when  dispensed  with,  §  2637. 

Loss,  excepted  perils,  §  2628. 

Loss  incurred  in  rescue  from  peril,  §  2627. 

Loss,  notice  of,  §§  2633-2637. 

Loss,  partial,  §  2757. 

Loss,  partial,  under  valued  policy,  §  2757. 

Loss,  preliminary  proofs,  §§  2634-2636. 

Loss,  proof  of,  sufficiency  of  preliminary  proofs,  §  2634. 

Loss,  remote  and  proximate  cause,  §  2626. 

Negligence  does  not  exonerate  insurer,  §  2629. 

Notice  of  loss,  effect  of  delay  to  give,  §  2633. 

Notice  of  loss,  waiving  defects  in,  §  2635. 

Notice  of  loss,  waiving  delay  in,  §  2636. 


810  INSURANCE,  XII,  XII,  XIV,  XV. 

Perils,  excepted,  cover  what  losses,  §  2628. 

Perils,  loss  in  rescuing  from,  §  2627. 

Perils,  remote  and  proximate,  §  2626. 

Wilful  act  of  insured  exonerates  insurer,   §  2629. 

Xlli.     Questions   relating    particularly   to  fire    insurance. 
Fire,  companies:     See  Insurance  Corporation. 
Contribution    in   case   of    double    insurance,    effect   ot 

insolvency,  §  2642. 
Double  insurance,  contribution,  §  2642. 
Effect  of  valuation  in  policy,  §  2756. 
Examination  of  premises  by  insured,  and  value  fixed, 

§  2757. 
Increase  of  risk,  §§  2753-2755. 
Increase  of  risk,  acts  affecting  an,  but  not  violating 

the  policy,  §  2755. 
Increase  of  risk,  alterations  that  affect  an,  §  2753. 
Increase   of  risk,   alterations   that   do   not  affect  an, 

§  2754. 
Measure  of  indemnity,  §  2756. 
Partial  loss,  §  2757. 

Property  which  may  be  insured,  §  426. 
Reinsurance,  §§  426,  428. 
Valued  policy,  §  2757. 
XiV.     Questions   relating   particularly  to   life   insurance. 
Life:      See  Insurance   Corporation. 
Assignment  of  policy,  §§  2764,  2765. 
Assignment  for  creditors,  insurance  upon  life  does  not 

pass,  §  3470. 
Assignment,  necessity  of,  notice  of,  §  2765. 
Does  not  pass  on  assignment  for  creditors,  §  3470. 
Insurable  interest,  §  2763. 
Measure  of  indemnity,  §  2766. 
Nonforfeiture  clause,  §  450. 
Right  to  paid-up  policy,  §  450. 
When  payable,  §  2762. 
XV.     Questions  relating  particularly  to  marine  insurance. 
Marine:      See    Insurance    Corporation. 
Abandonment,  acceptance  of  conclusive,  §  2728. 
Abandonment,  acceptance  of  not  necessary,  §  2V27. 
Abandonment,  accepted  is  irrevocable,   §  2729. 
Abandonment,  agent's  acts  after,  efiect  of,  §  2726. 
Abandonment  defined,  §  2716. 


INSURANCE,    XV.  811 

Abandonment,  effect  of,  §  2724. 
Abandonment  ineffectual,  when,  §  2720. 
Abandonment  made,  how,  §  2721. 
Abandonment  must  be  absolute,  §  2718. 
Abandonment  must  not  be  partial  or  conditional,  §  2718. 
Abandonment,  no  other  cause  than  specified  can  be 

relied  on,  §  2723. 
Abandonment,  notice  must  specify  all  causes  of,  §  2723. 
Abandonment,  notice  of,  not  necessary  on  total  loss, 

§  2709. 
Abandonment  not  presumed  from  mere  silence,  §  272T. 
Abandonment  of  freightage,  §  2717. 
Abandonment  of  ship,  effect  on  freightage,  §  2730. 
Abandonment,   omission  to   make,   right   of   recovery, 

§  2732. 
Abandonment,  refusal  to  accept,  liability  on,  §  2731. 
Abandonment,  requisites  of  notice  of,  §§  2722,  2723. 
Abandonment,  time  within  which  may  be  made,  §  2719. 
Abandonment,  waiver  of  formal,  §  2725. 
Abandonment,  when  proper,  §  2717. 
Against  actual  total  loss  covers  what,  §  2712. 
Average,  general,  §§  2148-2155.     See  General  Average. 
Average  loss,  §  2711. 
Average,  particular,  liability,  §  2711. 
Charterer  has  insurable  interest,  §  2665. 
Charter  party,  insurable  interest  exists  under,  §  2663. 
Concealment,  effect  of,  §  2672. 
Concealments  not  vitiating  policy,  §  2672. 
Contribution   in    case   of    double    insurance,    effect   of 

insolvency,  §  2642. 
Contribution,  subrogation  of  insurer,  §  2745. 
Course  of  sailing  determined,  how,  §  2693. 
Defined,  §  2655. 
Deviation  defined,  §  2694. 
Deviation  exonerates  insurer,  §  2697. 
Deviation  improper,  when,  §  2696. 
Deviation    proper,    when,    §  2695. 
Double,  §§  2641,  2642. 
Double  insurance,  contribution,  §  2642. 
Expense  and  labor,  liability  of  insurer  for,   §  2743. 
Freightage  signifies  what,  §  2661. 
General  average  loss,  §§  2711,  2744. 
Information  must  be  communicated,  §  2669. 


H2  INSURANCE,    XV. 

Insurable  interest  in  expected  freightage,  §  2662. 

Insurable  interest  in  profits,   §  2664. 

Insurable  interest  in  ship,  §  2659. 

Insurable  interest  of  charterer,  §  2665. 

Insurable  interest  reduced  by  bottomry,  §  2660. 

Labor  and  expenses,  liability  of  insurer  for,  §  2743. 

Liability  where  cargo  reshipped,  §  2707. 

Loss,  average,  §  2711. 

Loss,  constructive  total,  §  2705. 

Loss,  estimating  under  open  policy,  §  2741. 

Loss  is  total  or  partial,  §  2701. 

Loss,  partial,  §  2702. 

Loss,   partial,   anchors,   cannon   and   sheathing  metal, 

how  estimated,  §  2746. 
Loss,  presumed  from  continued  absence,  §  2706. 
Loss,  total,  is  actual  or  constructive,  §  2703. 
Loss,  what  amounts  to  actual  total,  g  2704. 
Material  information,  §  2670. 
Measure  of  indemnity  in  general,  §§  2736-2746. 
Neutral  papers,  §  2688. 
On  cargo  when  voyage  broken  up,  §  2707. 
One  third  new  for  old,  exceptions  to,  §  2746. 
Open  policy,  estimating  loss  under,  §  2741. 
Partial  loss,  liability  on,  §§  2737,  2742. 
Partial  loss,  measure  of  indemnity,  §§  2737,  2742. 
Partial  loss,  one  third  new  for  old,  §  2746. 
Prior  loss,  knowledge  of,  presumption  of,  §  2671. 
Profits,  measure  of  recovery  for,  §  2738. 
Profits,  valuation  in  policy  applied  to,  §  2740. 
Property  which  may  be  insured,  §  426. 
Reinsurance,  §§  426,  428. 
Representation,  effect  of  false,  §  2676. 
Representation  eventually  false,   §  2677. 
Representation  of  expectation,  §  2677. 
Reshipment  when  voyage  broken  up,  liability,  §§  2707, 

2708. 
Seaworthiness  as  to  cargo,  §  2687. 
Seaworthiness,  at  what  time  must  exist,  §  2683. 
Seaworthiness,  degrees  of  at  different  stages  of  voyage, 

§  2685. 
Seaworthiness,  what  constitutes,  §  2684. 
Ship's  manager  may  not  insure,  when,  §  2389. 
Subrogation  of  marine  insurer,  §  2745. 


INSURANCE,  XV— INSURANCE  CORPORATION.     913 

Unseaworthiness  occurring  in  voyage,  delay  in  repair- 
ing, §  2686. 

Valuation  applied  to  profits,  §  2740. 

Valuation  in  policy,   apportioned  when  part  only   ex- 
posed, §  27S9. 

Valuation  in  policy,  conclusiveness  of,  §  2736. 

Voyage  insured  is  what,  §  2692. 

Warranty  of  neutrality,  §  2688. 

Warranty  of  seaworthiness,  §  2681. 

When  insured  entitled  to  payment,  §  2709. 
INSURANCE    COMMISSIONER,   §   447. 

Duty  regarding  corporations  to  give  bonds,  p.  681,  §  3, 
Stats. 

Insurance  company  to  report  investments  to,  §  427. 

Power  of,  over  investments  by  insurance  corporations, 
§  427. 
INSURANCE  CORPORATION:    See  Insurance. 

Accident  insurance  on  assessment  plan,  act  relating  to, 
p.  724. 

Accident,   act  for   incorporation   of   mutual   insurance 
companies  for  insurance  against,  p.  731. 

Accident  insurance:     See  post,  this  title. 

Annuity  insurance  on  assessment  plan,  p.  724,  Stats. 

Assessment  plan,  health,  life,   accident,   annuity,   and 
endowment   insurance   on,   p.   724,    Stats. 
•  Assessments  on  stock,  limitation  of,  §  332. 

Benevolent  societies  exempt  from  insurance  laws,  §  451. 

Benevolent  societies  not  insurance  corporations,  §  451. 

Capital,   cash  assets  of  one  hundred   thousand,   must 
have,  when,  §  420. 

Capital,  cash  assets  of  two  hundred  thousand  dollars, 
must  have,  when,  §  419. 

Capital,    foreign    mutual    corporation   must   have   two 
hundred  thousand  dollars  cash  assets,  §  419. 

Capital  stock  must  be  one  hundred  thousand,   when, 
§  420. 

Capital  stock  must  be  at  least  two  hundred  thousand, 
when,  §  419. 

Directors,  alteration  in  number  of,  §  443. 

Directors  liable  for  loss  on  insurance,  when,  §  418. 

Directors  liable  on  what  policies,  §  418. 

Directors,  not  to  be  less  than  five,  §  443. 
Civ.  Code — 39 


914  INSURANCE  CORPORATION. 

Dividends,    amounts    to    be    reserved    before    making, 

§  429. 
Dividends,  of  what  and  when  declared,  §  417. 
Dividends,  of  what  not  to  be  declared,  §  417. 
Endowment    insurance    on    assessment    plan,    p.    724, 

Stats. 
Fire,  county  fire  insurance  companies,  organization  and 

management  of,  p.  732,  Stats. 
Fire  and  marine,  capital  to  be  paid  in  cash  in  twelve 

months,  §  424. 
Fire  and  marine,  certificate  of  capital  stock  to  be  filed, 

and  when,  §  425. 
Fire  and  marine,   dividends,   amounts  to  be  reserved 

before  making,  §§  429,  430. 
Fire  and  marine,  extent  of  power  of  assessment,  §  332. 
Fire  and  marine,  how  may  invest  funds,  §  427. 
Fire  and  marine,  limitation  on  risks,  §  428. 
Fire  and  marine,  payment  of  subscriptions,  §  424. 
Fire  and  marine,  rate  of  risk,  §  428.  * 

Fire  and  marine,  reservations  by  companies  with  less 

than  two  hundred  thousand,  §  430. 
Fire  and  marine,  risk,  limitation  on,  §  428. 
Fire  and  marine,  twenty-five  per  cent  of  capital  to  be 

paid  up  before  policies  issued,  §  424. 
Foreign,  capital  'stock  must  be  one  hundred  thousand, 

when,  §  420. 
Foreign,  cash  assets  of  one  hundred  thousand  dollars, 

must  have,  when,  §  420. 
Foreign,  cash  assets  of  two  hundred  thousand  dollars, 

must  have,  when,  §  419. 
Foreign,    must    have    capital    stock    of    two    hundred 

thousand,  when,   §  419. 
Foreign,  retaliatory  provisions,  §§  447,  449. 
Fraternal  societies  exempt  from  insurance  laws,  §  451. 
Funds,  how  may  be  invested,  §  427. 
Health,  act  for  incorporation  of  mutual  insurance  com- 
panies for  insurance  against,  p.  731. 
Health,    act    for    incorporation    of    mutual    insurance 

companies  for  insurance  of,  p.  731. 
Health  insurance  on  assessment  plan,  act  relating  to, 

p.  724. 
Health  insurance:     See  post,  this  title. 
Insurance,  law  of,  in  general:    See  Insurance. 


INSURANCE  CORPORATION.  916 

Investment  must  not  exceeTi  market  value  of  securities, 

§  427. 
Investments,  funds,  how  may  be  invested,  §  427. 
Investments,   power  of  insurance  commissioner  over, 

§  427. 
Investments  to  be  reported  to  insurance  commissioner, 

§  427. 
Life,  amounts  to  be  reserved  before   declaring  divi- 
dends, §  431. 
Life,  nonforfeiture  clause,  §  450. 
Life,  right  to  paid-up  policy,  §  450. 
Life  insurance  on  assessment  plan,  act  relating  to,  p. 

724. 
Mutual  insurance  companies  for  insurance  of  life  and 

health  and  against  accident,  p.  731,   Stats. 
Mutual    insurance    corporEtion,    foreign,    must    have 

two  hundred  thousand  dollars  cash  assets,  §  419. 
Mutual  life,  health,  and  accident,  in  general,  §§  437-451. 
Mutual  life,  etc.,  by-laws  may  limit  number  shares  one 

may  hold,  §  445. 
Mutual  life,  etc.,  by-laws  may  provide  for  protection 

of  stockholders,  §  445. 
Mutual  life,  etc.,  capital  stock,  amount  of,  §  437. 
Mutual  life,  etc.,  declaration  of  fixed  capital,  §  440. 
Mutual  life,  etc.,  fixed  capital,  of  what  consists  and 

deficiency  therein,  §  439. 
Mutual  life,  etc.,  guaranty  fund,  §  437. 
Mutual  life,  etc.,  guaranty  fund  to  consist  of  what,  §  438. 
Mutual    life,    etc.,    guaranty    notes    and    interest,    how 

disposed  of,  §  441. 
Mutual   life,   etc.,   insurance  commissioner,   furnishing 

data  to  and  duties  of,  §  447. 
Mutual  life,  etc.,  insured  entitled  to  vote,  when,  §  442. 
Mutual  life,  etc.,  loan  not  to  exceed  sixty  per  cent  of 

market  value,  §  444. 
Mutual  life,  etc.,  may  invest  in  what  securities,  §  444. 
Mutual   life,   etc.,   no  stamp   required   on   accident  in- 
surance contract,  §  448. 
Mutual  life,  etc.,  policies  not  to  be  issued  until  what 

time,  §  437. 
Mutual  life,  etc.,  policies,  participation  in  profits,  §  446. 
Mutual  life,  etc.,  premiums  payable,  how,  §  446. 
Mutual  life,  etc.,  subscriptions,  §  437. 


916  INSURANCE    CORPORATION— INTENTION. 

Mutual  life,  etc.,  surplus,. §  437. 

Mutual  life,  etc.,  valuation  of  policies  not  accepted  In 

other  states,  retaliatory  provisions,  §  449. 
Mutual    life,    etc.,    valuation    of    policies    outstanding, 

when  and  how  estimated,  §  447. 
Policies,  by  what  officers  to  be  signed,  §  416. 
Policies,  how  issued,  §  416. 
Real  property,  restrictions  on  purchasing,  holding  and 

conveying,  §  415. 
Seal  policies  without,  §  416. 

Subscription  to  capital  stock,  opening  books  of,  §  414. 
Subscriptions  to  capital  stock,  securing,  §  414. 
Title  insurance  company  may   invest  funds  in  plant, 

§  427. 
Title,  dividends,  amounts  to  be  reserved  before  making, 

§  432. 
Title,  dividends  declared  of  what,  §  432. 
Title,  surplus  fund  and  impairment  and   restoration, 

§  432, 

See  Insurance. 
INTEMPERANCE,  divorce  for,  §§  92,  107. 
INTENTION,  fraudulent,  question  of  fact,  §  3442. 
General  terms  restricted  by  main,  §  1648. 
How  ascertained,  §  1637. 
How  ascertained  in  revision,  §  3401. 
Of  grantor  in  ambiguous  grant,  §  1068. 
Of  testator,  §§  1317,  1370. 
Of  testator,  how  ascertained,  §  1318. 
Of  trustor,  necessary  to  creation  of  trust,  §  2221. 
Overrules  grammatical  construction,  §  1324. 
Overrules  technical  meaning,  §  1327. 
Particular  clauses  subordinate  to  general,  §  1650. 
Presumption  of,  to  destroy  or  cancel  contract,  §  1699. 
Revision  of  contract  so  as  to  conform  to,  §  3399. 
Substantial  compliance  with,  sufficient,  §  1348. 
Superior  to  terms  of  written  contract,  when,  §  1640. 
To  deceive,  an  essential  element  of  fraud,  §  1572. 
To  desert,  not  always  coexistent  with  separation,  §  100. 
To   extinguish   old   obligation,   necessary  in   novation, 

§  1531. 
To  govern  interpretation  of  contract,  §  1636. 
To  make  ademption,  must  be  in  writing,  §  1351. 


INTENTION — INTEREST.  917 

When  ascertained  by  the  language,  §  1638. 
When  ascertained  by  the  writing  alone,  §  1639. 
Words  inconsistent  with,  rejected,  §  1653. 
INTEREST,  annual  rate  where  no  time  fixed,  §  1916. 

Any  rate  agreed  on  allowed  until  entry  of  judgment, 

§  1918. 
Any  rate  may  be  agreed  on,  §  1918. 
Application  of,  §  1479. 
Bequest  of,  income  when  accrues,  §  1366. 
Bottomry  contract,  rate,  §  3022. 
Building  and  loan  corporation,  rate  of,  §  634. 
Cemetery  bonds,  rate  on,  §  611. 
Compounding,  §  1919. 
Compound,  trustee's  liability  for,  §  2262. 
Computation  of,  §  1917. 
Damages,  as,  §  3288. 
Damages,  interest  on,  3287. 

Damages  prescribed  in  code  are  exclusive  of,  §  3357. 
Defined,  §  1915. 
Guaranty  notes  of  mutual  life  insurance  companieSi 

on,  §  441. 
In  action  ex  delicto,  §  3288. 
Judgment,  on,  §§  1917,  1920. 
Land  and  building  corporation,  §  634. 
Legacies,  on,  §  1369. 
Legal  rate,  §§  1917,  1918. 
Offer  of  performance  stops,  §  1504. 
Protested  bill,  on,  §  3236. 
Presumed  on  loan,  §  1914. 
Principal,  agreement  that  interest  shall  become  part 

of,  §  1919. 
Railroad  bonds,  on,  §  456. 
Rate  after  breach  of  contract,  §  3289. 
Rate  after  verdict,  §  3289. 
Rate  in  absence  of  contract,  §  1917. 
Rate,  limit  of  by  contract,  §  3289. 
Rate,  on  money  borrowed  by  homestead  corporation, 

§  560. 
Rate,  parties  may  agree  for  any,  §  1918. 
Respondentia,  rate,  §  3039. 
Special  partner  entitled  to,  §  2494. 
Trustee  liable  for,  if  omits  to  invest  trust  funds,  §  2262. 


WIS  INTEREST — INTESTACY. 

Trustee's  liability  for,  to  beneficiary,  §  2237. 

Waiver  of,  by  accepting  principal,  §  3290. 

Year,  what  deemed  to  be  in  computation  of,  §  1917. 
INTERESTS    IN     PROPERTY  absolute,  §   679. 

Chattel,  §  765. 

Classification,  §  702. 

Denominated  estates,  §  701. 

Future,  §  690. 

Future  contingent,  §  695. 

Future  contingent,  may  be  alternative,  §  696. 

Future  contingent,  not  void  because  improbable,  §  697. 

Future,  how  defeated,  §§  739,  740. 

Future,  none  unless  specified,  §  703. 

Future,  pass  by  transfer,  §  699. 

Future,  right  of  posthumous  children,  §  698. 

Future  vested,  §  694. 

Future,  when  not  defeated,  §§  741,  742. 

In  common,  §  685. 

In  existing  trust,  how  transferred,  §  1135. 

In  ship,  how  transferred,  §  1135. 

Joint,  §  683. 

Limited,  §  692. 

Mere  possibility  of,  not  transferrable,  §  700. 

Merger  of,  destroys  servitude,  §  811. 

Partnership,  §  684. 

Perpetual,  §  691. 

Present,  §  689. 

Qualified,  §  680. 

Time  of  creation  of,  §  749. 

Transfer  of,  when  mortgage,  §  2921. 

Trustee  must  give  beneficiary  notice  of  acquisition  of, 
§  2233. 

What  affected  by  transfer,  §  1083. 

When  void  for  suspending  alienation,  §  716. 
INTERLOCUTORY     DECREE,     in     divorce     proceedings, 

§§  61,  131,  132. 
INTERPRETATION:    See  Construction. 
INTERPRETER,     acknowledgments,    officer    taking    may 

employ,  §  1201. 
INTESTACY,  disposition  of  property  in  case  of,  §  1384. 

Rules  of  descent  of  property  in  case  of,  §  1386. 

Succession  in  case  of,  §§  1383-1409.     See  Succession. 

Will   interpreted  to  avoid,   if  possible,    §   1326. 


INTESTATE— JOINT.  919 

INTESTATE,  estate  of  chargeable  with  debts,   §   1358. 

See  Succession. 
INUNDATION,   deposit  in  case  of,   §§   1815,  1816. 
INVENTIONS,  author  of,  has  exclusive  ownership,  §  980. 

Property  in,  §§  980-985. 

Subsequent  inventor  of  same  thing,  rights  of,  §  984. 
INVENTORY,  assignor  for  creditors  must  make,  §§  3461, 
3462. 

Legatee  for  life,  inventory  by,  and  what  to  containi 
§  1365. 

Of  separate  property  of  wife,  §§  165,  166. 

Specific  legatee  must  take  and  deliver,  §  1365. 
INVESTMENT.      Insurance    companies,    how    may    invest 
funds,   §   427. 

Trustee,  by,  §§  2261,  2262. 
IRRIGATION:   See  Water  and  Canal  Corporation. 

Rates  of  water  for,  supervisors  may  fix,  p.  786,  Stats. 
IRRIGATION   CORPORATION,   §  552. 

Transfer  of  stock,  §  324. 
ISLAND,  belongs  to  whom,  §§  1016-1018. 
ISSUE,  interpretation  of,  §  1071. 

JACKS.    Lien  of  owner  of  jack  used  for  propogation,  p.  738, 

Stats. 
JETTISON,  §§  2148-2155. 

By  whom  may  be  made,  §  2150. 

Defined,  §  2148. 

In  general,   §  2155. 

Loss  by,  how  borne,  §  2151. 

Order  of,  §  2149. 

Rules  governing  apply  to  what  sacrifices  and  expenses, 

§    2155. 
Things  stored  on  deck,  §  2154. 
When  justifiable,   §   2148. 
JOINT  and  several,  contract  when  presumed  to  be,  §§  1659, 
1660. 
And  several  obligation,  §  1430. 
Authority,  how  construed,  §  12. 
Authorship,  §  981. 
Contribution  of  parties,  §  1429. 

Contribution  between  joint  or  joint  and  several  obli- 
gors. §  1432. 


820  JOINT— JUDGMENTS. 

Creditor,  directions  by  one,  §  1476. 

Creditor,   performance   to   one,   §   1475. 

Debtor,  performance  by,  §  1474. 

Debtors,  release  of,  §  1543. 

Delivery  by  depositary  of  thing  owned  jointly,  §  1827. 

Drawees,  presentment  to,   §   3187. 

Drawees,   presentment  to  one,  and  refusal,   §   3187. 

Employees,  duty  of  survivor,  §  1991. 

Guardian,  death  of,  §  252. 

Interest,  change  in,  does  not  affect  insurance,  §  2557. 

Interest  defined,  §  683. 

Obligations,  §§  1430-1432. 

Obligation  presumed  joint  when,  §  1431. 

Obligor,   performance   by,    §    1474. 

Ownership  defined,  §  683. 

Owners,  delivery  of  deposit  to,  how  made,  §  1827. 

Promise  presumed  joint  and  several,  §§  1659,  1660. 

Service  after  death  of  joint  employee,  §  1991. 

Trustee,  liability  of,  §  2239. 

Trustees,  all  must  act,  §  2268.     * 

Trustees,  survivorship  between,  §  2288, 
JOINT  STOCK  COMPANY.     Contract  to  relieve  director 

from  liability  void,   §§  325,  327. 
JUDGE.    Acknowledgment,  what  judges  may  take,  §  1180. 

Police  judge  may  solemnize  marriage,   §   70. 

Superior,  may  consent  to  apprenticeship  when,  §  266. 
JUDGMENTS.    Action  lies  to  obtain  judgment  proving  In- 
strument,  §   1203. 

Affecting  title  may  be  recorded  without  acknowledf- 
ment,    §    1159. 

Confession  of,  by  special  partner,  void,  §  2496. 

Confess,  partner  may  not,  §  2430. 

Effect  of,  in  action  to  prove  instrument,  §  1204. 

Interest  on,  §§  1917,  1920. 

Lien  governed  by  Code  of  Civil  Procedure,  §  3058. 

Marriage,  annulling,  conclusiveness  of,  §  86. 

Partner  may  not  confess,  §  2430. 

Proving  instrument,   §   1204. 

Recording:     See  Recording. 

Title,  for  possession  or,  §  3375. 

Unrecorded  instrument,  void  as  against,  §  1214. 


JUDICIAL    SALE — LANIJLORD    AND    TENANT.  921 

JUDICIAL  SALE,  foreclosure  of  right  to  redeem  pledge, 
§  3011. 
Warranty  on,   §   1777. 

JUSTICE  OF  PEACE,  acknowledgment,  certificate  of,  au- 
thority to  take,    §   1194. 

Acknowledgment,  may  take,  §  1181. 

Apprenticeship,  consenting  to,  §  265. 

Marriage  ceremony,  may  solemnize,  §  70. 

May  direct  calling  meeting  of  corporation,  when,  §  311. 
KILLING  SHEEP  by  dogs,   §  3341. 

KINDRED,  collateral  line,  §  1393. 

Degree  of,  how  established,  §  1389. 

Direct  line,  §  1392. 

Half  blood  inherit  equally,  §  1394. 

Series  of  degrees  of,  §  1391. 
KLAMATH  COUNTY,  tolls  in,  §  514. 
KNOWLEDGE:     See  Notice. 

Necessary   to   ratification,    §    2314. 

Of  principal  not  necessary  to  create  guaranty,  §  2788. 

LABOR.   Hours  of  labor  of  minor,  acts  regulating,  pp.721, 

722. 
LABORER,  lien  of,  §  3052. 
LAKE,  boundary,  lake  as,  rights  of  owners,   §  830. 

State  owns  land  below  water  of,  §  670. 
LAND  defined,  §  659. 
LAND   AND    BUILDING    CORPORATION:      See   Building 

and  Loan  Corporation. 
LAND  AND  WATER  CORPORATIONS  dividing  land,  wa- 
ter and  water-rights  among  stockholders,  §  309. 
See  Water  and  Canal  Corporations. 
LANDLORD  AND  TENANT:     See  Lease;  Rents. 

Adverse  proceeding,  tenant  to  give  notice  of,  §  1949. 
Assignee  of  lessee,  liability  of,  §  822. 
Assignee  of  lessee,  rights  of  lessor  against,  §  822. 
Assignee   of  lessor,   rights    of    lessee    and    assignee 

against,  §  823. 
Attornment  by  tenant  not  required,   when,   §   1111. 
Attornment  of  tenant  to  stranger,  §  1948.        ••* 
Change  in  terms  of  lease,  §  827. 


922  LANDLORD    AND    TENANT. 

Dwelling-house,  lessor  to  put  in  fit  condition,  §  1941. 

Ejectment,  tenant  to  give  notice  of,  §  1949. 

Ejectment  without  notice,  §  793. 

Fixtures:     See  fixtures. 

Grant  by  landlord,  right  of  tenant  paying  rent  before 
notice,  §  1111. 

Holding  over  willfully,  treble  rent,  §  3345. 

Lease  for  life,  rent  recoverable  after  death,  §  825. 

Lease,  statute  of  frauds,   §  1624. 

Lease,  terms  of,  may  be  changed  by  notice,  §  827. 

Lessees  and  their  assignees,  rights  of,  §  823. 

Lessee's  assignee,  liability  of,  §  822. 

Letting  parts  of  rooms  forbidden,  §  1950. 

Lodgings,  hiring  for  indefinite  term,  presumption  as  to, 
§  1944. 

Notice  of  change  in  terms  of  lease,  §  827. 

Notice,. re-entry  on  termination  of,  §  790. 

Notice,  rights  on  termination  of,  §  790. 

Notice  to  quit,  length  of,  §§  789,  1946. 

Possession,  action  lies  for  without  notice,  when,  §  793. 

Quit,  failure  to  after  notice,  treble  rent,  §  3344. 

Re-entry  after  termination  of  notice,  §  790. 

Re-entry,  right  of  can  be  transferred,  §  1046. 

Re-entry,  when  and  how  to  be  made,  §  791. 

Renewal  of  lease  by  acceptance  of  rent,  §  1945. 

Renewal  of  lease  by  continued  possession,  §  1945. 

Renewal  presumed  in  absence  of  notice  of  termina- 
tion, §  1946. 

Renewed,  tenancy  deemed  unless  notice  to  quit  given, 
§  1946. 

Rent  dependent  on  life  recoverable  after  death,  §  825. 

Rent,  effect  on  of  lessor's  failure  to  repair,  §  1942. 

Rent  on  life  lease,  recovery  of,  §  824. 

Rent  payable  when,  §  1947. 

Rent,  tenant  released  from  by  letting  room  in  parts, 
§  1950. 

Repairs,  duty  of  lessor  to  make,  §  1941. 

Repairs,  effect  of  lessor  not  making,  §  1942. 

Repairs,  failure  to  make,  vacation  of  premises,  §  1942. 

Repairs,  when  lessee  may  make,   §   1942. 

Repairs,  when  lessor  to  make,  §  1941. 

Rooms,  letting  in  part  forbidden,  §  1950. 


LANDLORD    AND    TENANT — LEASE.  923 

Summary  proceedings  to  obtain  possession,  §  792. 
Tenant  at  will,  rights  of,  §§  S19,  820. 
Tenant  entitled  to  whole  room,  §  1950. 
Tenant  for  years,  rights  of,  §§  819,  820. 
Tenant  must  deliver  notice  served  on  him,  §  1949. 
Term,  hiring  lodgings  or  house  for  indefinite,  §  1944. 
Term  of  hiring  when  no  limit  fixed,  §  1943. 
Termination  of  tenancy,  at  will,  notice,  §§  789,  790. 
Treble  rent  for  failure  to  quit  after  notice,  §  3344. 
Treble  rent  for  holding  over,  §  3345. 
Vacation  by  tenant  for  want  of  repairs,  §  1942. 
See  Lease;  Rents. 
LAPSED  devise,  §  1343. 
Legacy,   §  1343. 

LAPSE  OF  TIME,  bottomry  lien,  extinguishes,  §  3027. 

Defined,  §  125. 

Divorce  denied  on,  §  111. 

Lien,  extinguishes,   §   2911. 

Nuisance,  does  not  legalize,  §  3490. 

Partnership  dissolved  by,  §  2450. 

Presumptions  arising  from,  rebutting,  §  126. 

Proposal  to  contract  revoked  by,  §  1587. 
See  Limitation  of  Actions. 
LATERAL  SUPPORT,  easement  of,   §   801. 

Excavations,  §  832. 

Right  of,  §  832. 
LAUNDRY,  lien  on,  §  3051. 
LAW,  fraud  a  question  of  fact  and  not  of,  §  3442. 

Obligations  imposed  by,  §§  1708-1717. 
LEASE:     See  Hiring;  Landlord  and  Tenant. 

Agricultural  lands,  of,  not  over  ten  years,  §  717. 

Building  and  loan  association  may  make,  §  640, 

Change  in  terms  of,   §   827. 

City  lots,  of,  not  over  fifty  years,  §  718. 

Lessees  and  their  assignees,  rights  of,  §  823. 

Lessees,  assignees,  liability  of,  §  822. 

Incompetent,  limit  of  term  of  lease  of,  §  718. 

Infant,  limit  of  term  of  lease  of,  §  718. 

Letting  part  of  rooms  forbidden,  §  1950. 

Life,  rent,  how  recoverable,   §  824. 

Limit  of  term  of  lease  of  city  lot,  §  718. 


924  LEASE— LETTER    OF     CREDIT, 

Limit  of  term  of  lease  of  minor  or  incompetent  person, 

§  718. 
Limit  of  term   of   lease  of   property   of  municipality, 

§   718. 
Recording,    want   of    rights    of    bona    fide    purcnaser, 

§   1214. 
Renewal  by  continued  possession,  §  1945. 
Rents:     See  Rents. 
Statute  of  frauds,  §  1624. 

Telegraph  or  telephone,  property  of,  lease  of,  §  540. 
Trust,  express,  to  lease  realty,  §  857. 
Terms  of  may  be  changed  by  notice,  §  827. 
LEGACY,  gift  causa  mortis  treated  as,  §  1153. 

See   Wills. 
LEGISLATURE,  dissolution  of  corporation  by,  §  384. 
Examination  by,  into  affairs  of  corporation,  *§  383. 
Regulation  of  freights,  §  465. 
LEGITIMACY.     Adoption    of    illegitimate    child,    consent, 

§  224. 
Adultery  of  husband,  effect  on  of  children,  divorce  for, 

§  144. 
Adultery  of  wife,  divorce  for,  legitimacy  of  children, 

§   145. 
Children  legitimate  where  marriage  annulled  or  divorce 

granted,  §  1387. 
Mother   may    appoint   guardian   of    illegitimate    child, 

§   241. 
Of  children  born  after  dissolution  of  marriage,  §  194. 
Of  children  born  in  wedlock,  §  193. 
Of  children   not  affected   by   annulment  of   marriage, 

§  84. 
Of  children,  who  may  dispute,  §  195. 
Presumption  of,  §  195. 

See  Bastards. 
LESSOR  AND  LESSEE:     See  Landlord  and  Tenant. 
LETTER  OF  ATTORNEY:      See  Power  of  Attorney. 
LETTER  OF  CREDIT,  construction  of,  §  2866. 

Credit  given  must  agree  with  terms  of,  §  2866. 
Defined,  §  2858. 

General,  authority  to  pay  under,  §  2862. 
General,  defined,   §  2861, 


LETTER    OF    CREDIT— LIEN.  825 

General,  extent  of,  §  2863. 

General,  nature  of,  §  2862. 

General,  rights  of  one  paying  under,  §  2862. 

General,  several  persons  may  successively  give  credit, 
§   2863. 

How  may  be  addressed,  §   2859. 

Is  general  or   special,    §   2860. 

Liability  of  writer,  §  2860. 

May  be  continuing  guaranty,  §  2864. 

Notice  to  writer,  whether  necessary,  §  2865. 

Special,  defined,   §   2861. 
LETTERS  containing  valuables,  carrier's  liability,  §  2177. 

Property  in,  §  985. 

Right  to  publish,  §  985. 

When  deemed  to  be  continuing  guaranty,  §  2864. 
LETTERS  PATENT,  acknowledgment  of,  not  necessary  to 
recording,  §  1160. 

Lost,  recording  certified  copy,  §  1160. 
LEX  DOMICILII  governs  personalty,  §  946. 
LIBEL,  defamation,  §  44. 

Defined,  §  45. 

Malice,  when  not  inferred,  §  48. 

Privileged  communications,  defined  and  classif  ed,  §  47. 

Right  to  protection  from,  §  43. 
LICENSE,  marriage,  §§  69-79. 

Ships,  of,  §  966. 

Street  railway's,  §  508. 

To  take  tolls,  §  528. 
LIEN,  accessory  to  act  secured,   §  2909. 

Agistor's,   §  3051. 

Apportionment  of,  §  2912. 

As  security  for  performance  of  obligatioii  not  in  ex- 
istence,  §   2884. 

Attachment,  lien  of  oflicer,  §  3057. 

Banker's,  §  3054. 

Boarding-house  keepers,   §  1861. 

Bottomry,  priority,  §  2897. 

Bottomry,  generally,   §§   3017-3029.     See  Bottomry. 

Bulls  used  for  propogation,  liens  in  favor  of  owner, 
p.  738,  Stats. 

Carrier's,  §  2144. 


926  LIEN. 

Carrier's,  on  baggage,  §  2191. 

Carrier's,  ship's  manager  may  not  give  up,  §  2389. 
Claim  not  due,  no  lien  for,  §  2882. 
Compensation,  holder  not  entitled  to  for  trouble  or  ex- 
pense, §  2892. 
Confined  to  original  obligation,  §  2891. 
Contract,  may  be  created  by,   §   2884. 
Contract  respecting,  when  void,  §  2889. 
Contracts  subject  to,  in  general,   §   2877. 
Conversion,  damages  of  lienor,  §  3338. 
Created  by  law  or  contract,  §  2881. 
Defined,  §  2872. 

Delivery,  want  of  change  of,  effect  of,  §  3440. 
Depositary  has,   §   1856. 
Execution,  lien  of  ofllcer,  §  3057. 
Extent  of,  §  2891. 
Extinguished  by  limitation,  §  2911. 
Extinguished  by  restoration  of  property,  §  2913.  * 

Extinguished  by  sale  or  conversion,  §  2910. 
Extinguished  how,  in  general,  §  2909. 
Extinguished,  not  by  partial  performance,   §   2912. 
Factor's,       3053. 

Forfeiture  of  property,  contract  for,  void,  §  2889. 
Fraudulent  conveyance,  delivery,  §  3440. 
Future  interest,  lien  on,  when  attaches,  §  2883. 
Future  interest,  on,  §  2883. 
Future  obligation,  as  security  for,  §  2884. 
General  or  special,  liens  are,  §  2873. 
General,  defined,  §  2874. 
Homestead,  liability  for,  §  1241. 
Hotelkeeper's,  §  1861. 
Incumbrance  includes,  §  1114. 
Innkeeper's,  §  1861. 
Is  general  or  special,  §  2873. 

Jacks  used  for  propogation,  lien  of  owner,  p.  738,  Stats. 
Judgment,  covered  by  Code  of  Civil  Procedure,  §  3058. 
Laborer's,    §,  3052. 

Laborers  on  threshing-machines,  liens  of,  p.  743,  Stats. 
Laundry,  for,  §  3051, 
Laundry,  on,  §  3051. 
Livery-stable  keeper,  of,  §  3051. 
Livestock,  for  keeping,   §  3051. 


LIEN.  927 

Lodging-honse  keepers,  §  1861. 

Loggers  and  laborers  in  logging  camps,  lien  of  upon 

logs,  p.  740,  Stats. 
Mechanic's,  regulated  by  civil  procedure,  §  3059. 
Mortgage,  subject  to  law  of,  §  2877. 

See   Mortgage. 
Officer's,  for  levying  writ,  §  3057. 
Order  of  resort  to  different  funds,  §  2899. 
Partner's,  in  mining  partnership,  §  2514. 
Partner's,  on  shares  of  copartner  for  payment  of  firm 

debts,  §  2405. 
Part  performance  does  not  extinguish,  §  2912. 
Pasturing  stock,  for,   §   3051. 
Personal  obligation  not  implied  by,  §  2890. 
Personalty,  on,  for  repairs,  etc.,   §  3052. 
Pledge,  §  2877. 
Pledge,  lienor  may,   §   2990. 
Pledge,  subject  to  law  of,  §  2877. 
Possession,  lien  dependent  on,  §  3051. 
Prior,  right  of  holder  of  special  lien  paying,  §  2876. 
Priority,  §  2897. 

Priority  of  bottomry,  §§  3028,  3029. 
Priority  of  liens  against  ship,  §  3028. 
Priority  of  purchase   money   mortgage,    §    2898. 
Purchaser  of  interest  in  mining  claim  takes  subject  to, 

§§    2517,    2518. 
Recording,  §  1164.    . 

Redemption,  contract  in  restraint  of,  void,  §  2889. 
Redemption,  how  made,  §  2905. 
Redemption,  rights  of  inferior  lienor  as  to,  §  2904. 
Redemption,  who  entitled  to,  §  2903. 
Respondentia  subject  to  law  of,  §§  2877,  2897. 

See  Respondentia. 
Repairs,  for,  §  3052. 
Sale  of  personalty  to  enforce,  §  3052. 
Salvage,   lien  for,    §    2079. 
Seamen's,  §  3056. 
Services,  for,  §  3051. 
Sheriff's,  §  3057. 
Shipmaster's,   §  3055. 
Ship's,  debts  when  liens  against,  §  3060. 
Special,  defined,   §  2875. 


928  LIEN — LITERARY    PROPERTY. 

Special,  mortgage  is,  unless,  §  2923. 

St)ecial  partner,  of,   when  void,   §   2496. 

Special,  right  of  holder  who  pays  prior  Hen,  §  2876. 

Stallions  used  for  propogation,  lien  in  favor  of  owner, 
p.  738,  Stats. 

$toppage  in  transit,  §§  3076-3080. 

Storage,  for,  §  1856. 

Subrogation  of  redemptioner,  §  2904. 

Title  not  transferred  by,  §  2888. 

Transfers  no  title,  §  2888. 

Vendee's,  §  3050. 

Vendor  of  personalty,  lien  of,  §  3049. 

Vendor's,  §§  3046-3049. 

Vendor's,  valid  against  whom,  §  3048. 

Vendor's,  waiver  of  by  transfer  of  contract,  §  3047. 
LIFE  INSURANCE:     See  Insurance. 
LiGHT,  easement  of,  §  801. 
LIMITATION  OF  ACTION.    Action  to  show  property  was 

community,  §  164. 
I      Corporation  to  organize  within  one  year,  §  358. 
'      Director's  personal  liability,  §  309. 

Divorce,  §§  124-127. 

Divorce  is  defeated  by,  §  111. 

For  annulment  of  marriage,  §  83. 

Prescription,  §  1007. 

Lien  extinguished  by  what,  §  2911. 

Nuisance,  time  does  not  legalize,  §  3490. 

Nuncupative  will,  proof  of,  §  1290. 

Partner  in  liquidation  cannot  revive  debt,  §  2462. 

Recovery   of  stock  sold  for   delinquent  assessments, 
§   347. 
LIMITED   INTEREST  defined,   §   692. 
LINEAL  WARRANTIES  abolished,  §  1115. 

Liability  of  heir  or  devisee  under,  §  1115. 
LIQUIDATED  DAMAGES,  §§  1670,  1671. 

Not  bar  to  specific  performance,  §  3389. 
LITERARY    CORPORATIONS.     Elections,  no  cumulative 

voting  unless  by-laws  provide,  §  307. 
LITERARY  PROPERTY  is  assignable,  §  982. 

Author  has  exclusive  ownership,  §  980. 


LITERARY    PROPERTY — LOAN.  929 

Joint  production,  how  owned,  §  981. 

Ownership  of,  how  long  continues,  §  980. 

Publication  of,  effect  of,  §  983. 

Subsequent  author  of  the  same  thing,  rights  of,  §  984. 

There  may  be  ownership  in  compositions,  §  655. 
LIVERY-STABLE,  lien  on  animals  kept,   §  3051. 
LIVESTOCK,  lien  for  keeping,  §  3051. 

Combinations   to  obstruct  sale   of,   prevented,  p.   665, 
Stats.  I 
LOAN:     See  Building  and  Loan  Associations;  Savings  and 
Loan  Associations;   Deposit;   Hiring. 

Animal,  care  required  of  borrower  of,  §  1887. 

Borrower  not  to  part  with  thing  to  third  person,  §  1891. 

Building  and  loan  associations,  act  creating  board  of 
commissioners,  p.  681. 

Care  required  of  borrower,  §§  1886,  1887,  1888. 

Defects,  lender  liable  for,  §  1893. 

Defined,  §  1884. 

Demand,  when  thing  returnable  without,  §  1895. 

Exchange,  expenses  of  property,  §  1904. 

Exchange,  for,  code  sections  applicable  to,  §  1906. 

Exchange,  for,  defined,  §§  1902,  1903. 

Exchange,  for,  lender  cannot  modify  contract,  §  1905. 

Exchange,  for,  title  to  property,  §  1904. 

Exchange,  increase  of,  to  whom  belongs,  §  1904. 

Expenses,  when  borrower  to  bear,  §§  1892,  1904. 

Hiring,  §§  1925-1959.     See  Hiring. 
See  Animals. 

Injuries,  when  borrower  to  repair,  §  1889. 

Interest  on,   §§   1914-1920. 

Money,  of,  defined,  §  1912. 

Money,  of,  interest,  §§  1914-1920. 

Money,  of,  presumed  to  be  on  interest,  §  1914. 

Money,  of,  to  be  repaid  in  current  money,  §  1913. 

Particular  use,  for,  §  1930. 

Place  of  return,  §  1896. 

Presumed  to  be  on  interest,  §  1914. 

Reloaning  forbidden,  §  1891. 

Returnable  without  demand,  when,  §  1895. 

Return  of  thing,  indemnity  to  borrower,   §  1894. 

Return  of  thing,  owner  may  require  at  any  time,  §  1894. 


830  LOAN — MAP. 

Return,  lender  requiring,  to  indemnify  borrower  when, 
§    1894. 

Return,  place  of,  §  1896. 

Stiipmaster's  authority  to  borrow  money,  §  2374. 

Ship's  manager  may  not  borrow  money,  §  2o89.    ' 

Skill  required  of  borrower,  §  1888. 

Title  of  property  loaned,  §  1885. 

Use  of  thing  loaned,  §  1890. 

"Use,  for  mere,  code  sections  governi^ig,  §  1912. 
LODGING-HOUSE  KEEPER:     Se*e  Innkeepers. 

Cubic  air  law,  p.  743,  Stats. 

Lien   on   baggage,    §    1861. 

Posting  statement  of  charges,  §  1863. 

Rent  payable  when,  §  1947. 

Sale  of  unclaimed  baggage,  §  1862. 

Term  presumed  hired  for,  §  1944. 
LOST    INSTRUMENTS.     Payment  of  lost  negotiable   in- 
strument, indemnity,  §  3137. 

Recording  certified  copies  of  lost  letters  patent,  §  1160. 
LOST  PROPERTY:     See  Finder. 
LOTTERY,  insurance  of,  not  authorized,  §  2532. 
LUGGAGE:     See  Baggage. 
LUNATIC:     See  Insane  Person. 

MAIL  CARRIERS  to  ride  free  on  street  railways,  p.  773, 

Stats. 
MAINTENANCE:     See  Divorce;  Parent  and  Child. 
MAJORITY,  age  of,  §  25. 

Attainment  of  ward  to  terminates  guardianship,  §  255. 

Joint  authority,  words  giving,  §  12. 

Mining   partnership,  majority   control,    §   2520. 

Of  partners,  authority  of,  §  2428. 
MALICE:     See  Libel;  Slander. 

Exemplary  damages  for,  §  3294. 

Interest  as  damages  in  case  of,  §  3288. 
MANUFACTURE,  agreement  to,  need  not  be  in  writing, 
§  1740. 

Implied   warranty   on   sale   of,   §§   1769,   1770. 
MAP  of  wagon  road,  §  513. 

Railroad,  to  be  filed,  §  466. 


MARINE    CARRIERS— MARRIAGE.  931 

MARINE  CARRIERS,  delay,  §  2117. 

Delivery  of  freight,  manner  of,  §  2119. 

Deviation  from  voyage,  §  2117. 

General  duties  of,  §  2117. 

Governed  by  congress,  §  2088. 

Is  what,   §   2087. 

Liability,   effect  of  acts   of  congress,   §   2197. 

Liability  in  case  of  fire,  §  2197. 

Liability  of,  §§  2197,  219S. 

Liability,  perils  of  the  sea,  §  2197. 

Perils  of  sea  are  what,   §   2199. 

Perils  of  sea,  liability  for  loss  by,  §  2197. 

Regulated  by  acts  of  congress,  §  2198. 

Stowage,  §  2117. 

MARINE  INSURANCE:     See  Insurance. 
MARITIME  LAW:     See  Shipping. 
MARK  as  signature,  §  14. 

Included  in  signature  or  subscription,  §  14. 

Signature  by,  how  made,  §  14. 

Signature  by,  two  witnesses  necessary,  §  14. 

MARRIAGE.    Absence  of  former  spouse,  marriage  during, 

effect  of,  §  61. 
Action  to  have  marriage  declared  incestuous  or  void, 

§  80. 
Action  to  have  validity  of  marriage  declared,  §  78. 
Annulment  of,  conclusiveness  of  judgment  of,  §  86. 
Annulment  of,  custody  of  children,  §  85. 
Annulment  of,  does  not  affect  legitimacy  of  children, 

§  84. 
Annulment- of ,  grounds  for,  §  82. 
Annulment  of,  limitation  of  actions  for,  §  83. 
Annulment  of,  time  within  which  to  bring  action  for, 

§  83. 
Annulment  of,  who  may  sue  tor,  §  83. 
Breach  of  promise,  damages,  §  3319. 
Breach  of  promise  of,  want  of  chastity  justifies,  §  62, 
Certificate  of,  delivery  of  copy  to  parties,  §§  74,  79. 
Certificate  of,  filing,  §§  74,  79. 
Certificate  of,  requisites  of,  §  73. 
Conditions  restraining,  effect  of,  §  710. 
Conflict  of  laws  relating  to,  §  63. 


932  MARRIAGE. 

Consent  alone  will  not  constitute,  §  55. 

Consent,  how  proved,  §  57. 

Consent  to,  minors  when  may,  §  57. 

Contracted  out  of  state,  validity  of,  §  63. 

Custody  of  children  of  annulled  marriage,  §  85. 

Declaration  of,  by  action  in  court,  §  78. 

Declaration  of,  by  members  of  particular  denomina- 
tion, §  79%. 

Declaration  of,  penalty  for  failure  to  record,  §  'i^Ys. 

Declaration  of,  recording,  §  791/2. 

Declaration  of,  subscription  and  attestation  of,  §  76. 

Declaration  of,  to  be  acknowledged  and  recorded, 
§§  77,  IdVz. 

Declaration  of,  to  contain  what,  §  76. 

Declaration  of,  when  may  be  made,  §§  76,  77. 

Defined,  §  55. 

Dissolution  of:     See  Divorce. 

Dissolved  how,  §  90. 

Divorce:      See  Divorce. 

Examination  of  applicant  for  license,  §  72. 

Examination  of  candidate,  §  72. 

Foreign,  validity  of,  §  63. 

Guardian,  powers  of  terminated  by,  §  255. 

Incestuous,  judicial  declaration  of,  §  80. 

Incestuous,  what  is,  and  effect  of,  §  59. 

Infant's,  ends  parental  authority,  §  204. 

Legitimacy  of  children  born  in  wedlock  presumed, 
§  193. 

Legitimacy  of  children  not  affected  by  annulment  of 
marriage,  §  84. 

Legitimate,  children  are,  where  divorce  granted,  §  1387. 

Legitimate,  children  of  annulled  marriage  are,  §  1387. 

Legitimizes  child  born  before  wedlock,  §  215. 

License,  certified  copy  of,  §  74. 

License,  consent,  filing  of,  §  69. 

License,  consent  necessary  where  parties  under  age, 
§  69. 

License,  examination  of  applicant  for,  §  69. 

License,  filing,  §  74. 

License,  marriage  without,   §  79. 

License,  minister  may  marry  without  when,  §  79. 

License,  necessity  of,  §§  69,  72,  79. 


MARRIAGE.  933 

License,  not  to  issue  for  marriage  between  white  per- 
son and  negro  or  mongolian,  §  69. 
License,  requisites  of,  §  69. 
Minors  capable  of,  §  56. 
Mongolians  and  whites,  effect  of,  §  69. 
Mulattoes  and  whites  void,  §§  60,  69. 
Remarriage  within  one  year  from  interlocutory  decree 

in  divorce  void,  §  61. 
Negroes  and  whites,  void,  §§  60,  69. 
Out  of  state,  validity  of,  §  63. 
Proving,  mode  of,  §  57. 

Promise  of,  release  from  by  unchastity,   §  62. 
Restraint  of,  contracts  in,  void,  §  1676. 
Second,  during  lifetime  of  other  spouse,  effect  of,  §  61. 
Second,  effect  of  where  spouse  not  heard  of  for  five 

years,  §  61. 
Second,  void,  unless  prior  marriage  annulled,  §  61. 
Second,  within  one  year  from  interlocutory  decree  In 
divorce,  void,  §  61. 

Settlement,  effect  of  recording,  §  180. 

Settlements,   executed  how,    §   178. 

Settlements,  minors  may  make,  §  181. 

Settlement  to  be  acknowledged  and  recorded,  §§  178, 
179. 

Solemnization,  examination  of  candidates,  §  72. 

Solemnization,   form   of,    §§    68,   71. 

Solemnization,  how  proved,  §   57. 

Solemnization,  members  of  particular  religious  denomi- 
nation,   §   791/0. 

Solemnization  necessary,   §   55. 

Solemnization,    noncompliance   with   statute   by   third 
person,  §  68. 

Solemnization,    substantial    requisites,    §    72. 

Solemnized,  may  be  by  whom,  §  70. 

Solemnized,  how,   §  68. 

Statute  of  frauds,  §  1624. 

Unchastity   as   ground   for  release   from   promise  of, 
§  62. 

Validity  of,  determined  and  declared  by  court,  §  78. 

Void,  judicial  declaration  of,  §  80. 

Voidable,  if  consent  obtained  by  fraud  or  force,  §  58. 

Voidable,  if  either  physically  incapable,  §  58. 


834  MARRIAGE— MASTER    AND    SERVANT. 

Ward's,  supersedes  guardian  appointed  by  ward,  §  254. 
What  constitutes,  §  55. 
Will,  effect  of  marriage  on,  §§  1298-1300. 
MARRIAGE  SETTLEMENT,   §§  178-181. 
MARRIED  WOMAN,  acknowledgment  of  deed  by,  §  1093. 
Acknowledgment  of  her  conveyance,  §  1187. 
Conveyance  by,  how  executed,  §  1093. 
Conveyance  of,  effect  of,  §§  1093,  1187. 
Dividends  on  stock  payable  to,  §  325. 
Homestead  stock  may  be  owned  by,  §  561. 
May  draw  dividends  in  savings  and  loan  society,  §  575. 
May  make  and  withdraw  deposits  in  savings  and  loan 

corporation,  §  575. 
Power  of  attorney  by,   §   1094. 
Proxy  given  by,  §  325. 

Savings  and  loan  stock  may  be  owned  by,  §  575. 
Signature  of  husband   not  necessary   on   transfer  of 

stock,  §  325. 
Signature  of  husband  not  necessary  where  proxy  given, 

§    325. 
Stockholder,  married  woman  as,  has  same  rights  as  if 

sole,  §  325. 
Transfer  of  stock  by,  §  325. 
Will,  may  dispose  of  separate  estate  by,  §  1273. 
Will  of,  how  executed  and  proved,  §  1273. 
MARSHALING  ASSETS,  order  of,  §§  2899,  3433. 
MASCULINE,  includes  feminine  and  neuter,  §  14. 
MASTER  AND  APPRENTICE:      See  Apprenticeship. 
MASTER  AND  SERVANT,  abduction  of  servant  forbidden, 

§   49. 
Account,  employee's  duty  to,  §  1986. 
Accounting  by  servant,  §  2014. 
Assumption  of  risks  by  servant,  §  1970. 
Apprenticeship:     See  Apprenticeship. 
Apprentices,  act  relative  to,  p.  665. 
Assignment  of  wages  by  employee  of  corporation,  act 

relative  to,  p.  700. 
Care  required  of  employee  for  his  own  benefit,  §  1979. 
Care  required  of  employee  for  reward,  §  1978. 
Care  required  of  gratuitous  employee,  §  1975. 


MASTER    AND    SERVANT.  635 

Compensation,  act  relating  to  assignment  of  wages  by 
employees  of  corporation,  p.  700. 

Compensation,  acts  providing  for  manner  of  by  cor- 
poration, pp.  699,  700. 

Compensation  for  service  without  employment,  §  2078. 

Compensation  for  employer's  successor,  §  1998. 

Compensation  of  employee  dismissed  for  cause,  §  2002. 

Compensation  of  employee  leaving  for  cause,  §  2003. 

Compensation,  presumption  as  to,  §§  1980,  2011. 

Compensation,  presumption  as  to  where  employment 
continued  beyond  term,  §  1980. 

Confidential  employment:      See  Trusts. 

Confidential  employments,  obligations  defined  by  title 
on  trusts,  §  1992. 

Continuance  of  service  after  death  or  incapacity  of  em- 
ployer,  §  1998. 

Contract  of  employment  defined,  §  1965. 

Contract  of  service  limited  to  two  years,  §  1980. 

Death  of  employee,   §   1997. 

Death  of  employer,  §§  1996,  1997,  1998. 

Death  of  joint  employee,  §  1991. 

Definition  of  contract  of  employment,  §  1965. 

Delivery  without  demand,  employee  not  bound  to 
make,  §  1987. 

Demand,  employee  not  bound  to  send  without  demand, 
§   1987. 

Discharge  of  servant,  grounds  for,  §§  2000,  2015. 

Dismissal  for  cause,  compensation,   §   2002. 

Dismissal  of  employee,  grounds  for,  §§  2000,  2015. 

Duties  of  employee  for  his  own  benefit,  §  1979. 

Duties  of  employee  for  reward,  §  1978. 

Duties  of  gratuitous  employee,  §§  1975-1977. 

Employee  not  bound  to  deliver  without  demand,  §  1987. 

Employee  to  comply  with  directions,  §  1981. 

Employee  to  obey,  §  1981. 

Employment,  contract  of,  defined,  §  1965. 

Enticement  of  servant  forbidden,  §  49. 

Expenses  and  losses,  employer  must  indemnify  em- 
ployee for,  §  1969. 

Fellow-servant,  master's  liability  for,   §  1970. 

Gratuitous  employee,  duties  of,  §§  1975-1977. 

Hiring,  renewal  of,  presumption  as  to,  §  2012. 


936  MASTER    AND    SERVANT. 

Hiring,  term  of,  §§  2010,  2011. 

Incapacity  of  employee,  discharge  for,  §  2000. 

Incapacity  of  employer  does  not  terminate  relation, 
when,  §  1998. 

Incapacity  of  master,  terminates  relation,  §  1996. 

Indemnity  against  servants'  acts,  contract  of,  §  2774. 

Indemnify  employee,  when  employer  must,  §  1969. 

Indemnify  employee,  when  employer  need  not,  §  1970. 

Injury  to  servant  forbidden,   §  49. 

Injury  to  servant  by  third  person,  §  "49. 

Joint  employees,  duty  of  survivor,  §  1991. 

Lien  of  loggers  and  laborers  upon  logs  cut,  p.  740, 
Stats. 

Lunch  hour  for  laborers  in  mills  and  logging  camps, 
p.  744,  Stats. 

Master's  liability  to  servant,  in  general,  §  1969. 

Miners,  act  providing  for  protection  of,  p.  745. 

Mutual  right  of  protection,  §§  49,  50. 

Neglect  of  employee,  discharge  for,  §  2000. 

Negligence  of  employee,  liability  for,  §  1990. 

Negligence  of  master,  liability  for,  §  1971. 

Obey,  employee's  duty  to,  §  1981. 

Ordi-nary  risks,  servant  assumes,   §   1970. 

Power  of  attorney,  gratuitous  employee  accepting,  du- 
ties of,  §  1977. 

Preference  to  employer's  interest,  §  1988. 

Renewal  of  hiring,  presumption  as  to,  §  2012. 

Seduction  of  servant  forbidden,  §  49. 

Servant  defined,  §  2009. 

Servant  not  bound  to  send  anything  to  master  through 
third  person,  §  2014. 

Servant  to  pay  over  without  demand,  §  2014. 

Service  without  employment,  §§  2078,  2079. 

Skill,  degree  required  of  employee,  §  1983. 

Skill,  employee  must  use  a*ll  he  has,  §  1984, 

Substitute,  liability  of  employee  for,  §  1989. 

Substitute  liable  directly  to  employer,  §  1989. 

Surviving  employee,  duty  of,   §  1991. 

Term  of  hiring,  presumption  as  to,  §§  2010,  2011. 

Termination,  death  operates  as,  §  1997. 

Termination  of  relation  at  will,  §  1999. 


MASTER    AND     SERVANT — METER.  937 

Termination  of  relation  by  death  or  incapacity  of  em- 
ployer,  §  1996. 

Termination  of  relation  by  employee  for  fault,  §  2001. 

Termination  of  relation  by  employer  for  fault,  §  2000. 

Termination  of  relation  not  worked  by  death  of  em- 
ployer, when,  §§  1996,  1998. 

Termination  of  relation,  what  works  a,  §  1997. 

Term  of  hiring,  presumption  as  to,  §§  2010,  2011. 

Things    acquired    by    employee    belong    to    employer, 
§  1985. 

Time  belongs  to  master,  §  2013. 

Usage,  employee  to  conform  to,  §  1982. 

What  things  acquired  by  employee  belong  to  employer, 
§  1985. 
MASTER,  SHIP'S:     See  Shipping. 
MATE:     See  Shipping. 
MAXIMS,  enumeration  of,   §§   3510-3543. 

In  general,  §  3509. 
MECHANICS    INSTITUTES,   act  providing  for  formation 
of,  p.  689. 

Act  validating  acknowledgments  by,  p.  665. 
MECHANIC'S  LIEN,  homestead,  liability  for,  §  1241. 

Regulated  by  Code  of  Civil  Procedure,  §  3059. 
MEMORANDUM,  auctioneer's  binding  on  parties,  §  1798. 

Auctioneer's,  to  contain  what,  §  1798. 

Declarations  of  trust,  of,  §  2254. 

On  contract  for  sale,  §  1739. 

On  contract  for  sale»of  real  property,  §  1741. 
See  Statute  of  Frauds. 
MENACE  consists  in  what,  §  1570. 

Rescission  for,  §  1689. 
MERCHANDISE,  implied  warranty  as  to,   §§  1768-1771. 
MERGER,  declarations,  merger  of  in  trust,  §  2254. 

Dominant  and  servient  estate,   §   811. 

Interests  of,  destroys  servitude,  §  811. 

Interest  of,  when  destroys  hiring,  §  1933. 

Oral  negotiations  merged  in  writing,  §  1625. 

Writing  supersedes  oral  negotiations,  §  1625. 

METER,  gas.  §§  628,  631. 
Civ.  Code —  40 


938  MINE— MINING    PARTNB.RSHIP. 

MINE:    See  Mining  Corporations. 

Claims,  recording  affidavits  of  work  and  notice,  §  1159. 

Claims,  recording  notice  of  location,  §  1159. 

Fixtures  attached  to,   §  661. 

Hydraulic  mining,  §§  1424,  1425. 

Mortgage  of  machinery,  §  2955. 

Partnership,  mining,  §§  2511-2520. 
MINING  CORPORATIONS.    Agencies  for  transfer  of  stock 
governed  by  by-laws  and  directors,  §  586. 

Agencies   for  transfer   of   stock  may   be  established, 
§  586. 

Agency,    stock   not   issued   at   unless    certificate    sur- 
rendered, §  587. 

Agency,  stock  transferred  at,  how  signed,  §  587. 

Agency,  transfer  at  binding,  §  586. 

Books  to  be  kept  open  for  inspection,  p.  749,  Stats. 

Consolidation  calling  meeting  of  stockholders  to  elect 
directors,  §  361. 

Consolidation,  creditors  not  to  be  affected,  §  361. 

Consolidation  of,  certificate  of,  filing  of,  §  361. 

Consolidation  of,  certificate,  what  to  contain  and  who 
to  sign,  §  361. 

Consolidation  of,  how  effected,  §  361. 

Examination  of  ground,  stockholder  has  right  of,  p.  749, 
Stats. 

May  consolidate,  §  361. 

Mortgage  of  property,  p.  752,  Stats. 

Posting  monthly  balances,  p.  749,  Stats, 

Protection  of  miners,  act  providing  for,  p.  745. 

Removal  of  officers,  act  providing  for,  p.  746. 

Removal  of  office,  filing  certificate  of  consent,  notice, 
publication  and  removal,  §  585. 
MINING  PARTNERSHIP.    Express  agreement  not  neces- 
sary, §  2512. 

Express  authority  necessary  to  bind,  §  2519. 

Lien  of  partners  on  property,  §  2514. 

Mine  is  firm  property,  §  2515. 

One  partner  cannot  bind  except  by  express  authority, 
§  2519. 

Owners  of  majority  of  shares  govern,  §  2520. 

Profits  and  losses  shared  how,  §  2513. 


MIXING     PARTNERSHIP — MORTGAGE.  939 

Purchaser  in  takes  subject  to  what  liens  and  claims, 
§   2517. 

Purchaser  in  takes  with  notice  of  liens,  when,  §  2518. 

Purchaser  of  interest  becomes  partner,  §  2516. 

Relation  arises  how,  §  2512.  * 

Sale  of  property,  p.  752,  Stats. 

Stockholders,  act  for  protection  of,  pp.   749,   752. 

Stock  to  be  in  name  of  real  owner,  p.  752,  §  2,  Stats. 

Transfer  by  partner  does  not  dissolve,  §  2516. 

When  exists,  §  2511. 
MINOR:     See  Infants. 

MISDEMEANOR.     Acting  as  agent  of  foreign  corporation 
without  complying  with  statute,  §  645. 

Foreign  agent  commits,  by  noncompliance  with  statute, 
§   645. 
MISREPRESENTATION:     See  Fraud. 
MISTAKE,  as  affecting  right  of  specific  performance,  §  3391. 

Consent  obtained  by,  §  1567. 

Disregarding  erroneous  parts  of  writing,  §  1640. 

Fact,  what  is,  §  1577. 

Fact  or  law,  may  be  either  of,  §  157(J. 
•    Foreign  laws,  of  is  mistake  of  fact,  §  1579. 

Law,  of,  what  is,  §  1578. 

Property  acquired  by,  §  1713. 

Reformation  of  contract  for,  §  3399. 

Rescission  for.  §§  1689,  1690. 

Rescission  for,  what  stipulations  do  not  defeat,  §  1690. 

Rescission  of  contract  for,  §  3407. 

Restoration  of  property  obtained  by  demand,  §  1713. 

Specific  performance,  effect  on,  §  3391. 

Trust  arising  from,  §  2224. 

Will,  in,   §  1340. 
MOCK  AUCTION:     See  Auction. 
MONEY,  loan  of:     See  Loan. 

Exchange  of,  §  1804. 
MONTH  defined,  §  14. 
MONUMENT,     duty   of   coterminous    owners    respecting, 

§  841. 
MORAL  OBLIGATION  as  a  consideration,  §  1606. 
MORTGAGE:     See  Lien. 

Acknowledgment  of,   §   2952. 

Adversely  held  property  may  be  mortgaged,  §  2921. 


640  MORTGAGE. 

Assignment  of  debt,  effect  of,  on  the  security,  §  2936. 

Assignment  of  may  be  recorded,  §  2934. 

Assignment,  record  of  as  notice,  §§  2934,  2935. 

Benevolent  association,  by,  §  598. 

Bona  fide  mortgagee,  rights  against  unrecorded  instru- 
ment,  §  1214. 

Bottomry  not  subject  to  law  of,  §  2942. 

Building  and  loan  association  may  make,  §  640. 

By  religious,  social,  or  benevolent  association,  §  598. 

Certified,  how,   §  2952. 

Chattel,  acknowledged  how,  §  2963. 

Chattel,  attachment  of  the  property,  proceedings  on, 
§§   2968-2970. 

Chattel,  continuance  on  crop  after  severance,  §  2972. 

Chattel,  enumeration  of  chattels  that  may  be  the  sub- 
ject of,  §  2955. 

Chattel,  execution  against  the  property,  proceedings 
on,  §§  2968-2970. 

Chattel,  foreclosed  how,  §  2967. 

Chattel,  form  of,  §  2956. 

Chattel,  fraudulent  transfer,  delivery,  §  3440. 

Chattel,  of  ships,  void  as  to  creditors,  etc.,  unless  re- 
corded, §  2958. 

Chattel,  recorded  how,  §  2963. 

Chattel,  recorded  in  separate  books,  §  2963. 

Chattel,  recorded  in  what  counties,  §   2959. 

Chattel,  recorded  where,  when  property  belongs  to 
"carrier,  §  2961. 

Chattel,  recorded  where,  wTien  property  in  transit, 
§  2960. 

Chattel,  recording  certified  copies  in  other  counties, 
§  2964. 

Chattel,  recording  in  different  places,  §  2962. 

Chattel,  record  of  certified  copy,  effect  of,  §  2964. 

Chattel,  removal  of  property  from  county,  §§  2965, 
2966. 

Chattel,  removal  of  property,  rights  of  mortgagee  on, 
§  2966. 

Chattel,  sale  of  the  property  under  process,  distribu- 
tion of  proceeds,  §  2970. 

Chattel,  ships  not  subject  to  law  of,  when,  §  2970. 

Chattel,  void  as  to  creditors,  etc.,  unless  recorded, 
§  2957. 


MORTGAGE.  94i 

Chattel,  void  as  to  creditors,  etc.,  when,  §  2957. 

Chattel,  what  property  may  be  the  subject  of,  §  2955. 

Deed  deemed  a,  when,  §§  2924,  2925. 

Defeasance,  deed  may  be  shown  to  be  subject  to, 
§   2925. 

Defeasance  to  be  recorded  when  deed  absolute  intended 
as  mortgage,  §  2950. 

Defined,  §  2920. 

Discharge,  certificate  of  to  be  given  to  mortgagor, 
§  2941. 

Discharge,  liability  for  refusal  to  execute  certificate 
of,  §  2941. 

Discharge,  recording  certificate  of,  §  2940. 

Discharge  of  record  by  foreign  executor,  §  2939^. 

Discharged  of  record,  how,  §§  2938,  2939. 

Execution  of,  formalities,   §  2922. 

Extended,  how,  §  2922. 

Extends  to  what,  §  2926. 

Factor  may  not,  §  2368. 

Foreclosure  of  right  of  redemption,  §  2931. 

Foreign  executor,  discharge  by,  §  2939^. 

Form  of,  §  2948. 

Homestead  liability  for,  §  1241. 

Homestead  mortgaged  how,  §  1242. 

Incumbrance  includes  what,  §  1114. 

Insurance  on  mortgaged  property,  §§  2541,  2542. 

Is  subject  to  law  of  liens,  §  2877. 

Lien  extends  to  what,  §  2926. 

Lien  of  is  independent  of  possession,  §  2923. 

Lien  of  is  special,  §  2923. 

Lien  of  is  special,  unless,  §  2923. 

Mining  property,   mortgage   of,   p.   752,    Stats. 

Personal  obligation,  is  not,  §  2928. 

Possession,  agreement  may  be  made  for  without  new 
consideration,   §  2927. 

Possession,  mortgagee  not  entitled  to  unless  author- 
ized, §  2927. 

Possession,  mortgagor  may  agree  to  mortgagee's  with- 
out new  consideration,  §  2927. 

Power  of  attorney  to  execute,  what  necessary,  §  2933. 

Power  of  sale,  §  2932. 

Power  of  sale,  when  deemed  part  of  security,  §  858. 


»42  MORTGAGE— MOTHER. 

Power  to  sell,  assignee  may  exercise,  §  858. 

Power  to  sell  passes  to  assignee,  §  858. 

Priority  of  a  purchase  money,  §  2898. 

Property  that  may  be  mortgaged,  §  2947. 

Proved,  how,   §   2952. 

Railroad,  §  456. 
.  Recording,  §  1164. 

Recording  certificate  of  discharge,  §  2940. 

Recording  defeasance  where  deed  is  intended  as  mort' 
gage,  §  2950. 

Recording,  in  general,   §   2952. 

Record  of  assignment  as  notice,  §§  2934,  2935. 

Redemption,  §§  2903-2905. 

Redmption,  right  of,  how  foreclosed,  §  2931. 

Religious  association,  by,  §  598. 

Renewed,  how,  §  2922. 

Respondentia  not  subject  to  law  of,  §  2942. 

Satisfaction,  certificate,  liability  of  mortgagee  for  re- 
fusal to  give,  §  2941. 

Satisfaction,  certificate  to  be  given  mortgagor,  §  2941. 

Satisfaction,  discharged  of  record,  how,  §§  2938,  2939. 

Satisfaction,  duty  of  mortgagee  on,  §   2941. 

Satisfaction,  recording  certificate  of  discharge,  §  2940. 

Shipmaster's  power  to  hypothecate,  §  2377. 

Ships,  of,  §  2971. 

Ship,  of,  necessity  of  recording,   §   2958. 

Statute  of  frauds,  §  2922. 

Title  subsequently  acquired  Inures  to  mortgagee,  §  2930. 

Transfer  deemed  a,  §  2924. 

Trust,  express,  to  mortgage  realty,  §  857. 

Vessels,  §  2955. 

Wagon  road  corporation,  by,  §  522. 

Waste,  who  may  not  commit,  §  2929. 

Will,  effect  of  incumbrance  on,  §  1302. 

Will  not  revoked  by,  §  1302. 

Written,  must  be,  §  2922. 
MOTHER:     See  Parent  and  Child. 

Apprenticeship,   consent  to,   §   265. 

Custody  of  child,  not  transferred  without  her  consent, 
§  197. 

Illegitimate,  of,  consent  of  to  his  adoption,  §  224. 

Illegitimate,  of,  entitled  to  custody  and  earnings,  §  200. 

Illegitimate,  of,  succeeds  to  his  property,  §  1388. 


MULLATOES — NECESSARIES.  943 

MULATTOES,  marriages  between,  and  whites  void,  §§  60, 

69. 
MULTIPLICITY  OF  SUITS,  injunction  to  prevent,  §  3422. 
MUNICIPAL   CORPORATION,   injunction   not  granted   to 

prevent  legislative  act,  §  3423. 
Fares  on  railroads  in  cities  over  100,000,  act  limiting, 

p.  772,  Stats. 
Franchises  for  street  railway,  act  limiting  time  within 

which  may  be  granted,  p.  773. 
Franchises,   acts   relating   to   sale   of   and   governing 

conditions  of  sale,  pp.  753-762. 
Limit  of  term  of  lease  of  property  of,  §  718. 
Private  and  public  corporations  distinguished,   §   284. 
Water  company's  relations  with,  §§  548-551. 
Will,  power  to  take  under,  §  1275. 
MUTUAL  BENEFIT  SOCIETY:     See  Religious,  Social,  and 

Benevolent  Corporation. 

MUTUAL  LIFE  AND  ACCIDENT  INSURANCE  CORPORA- 
TION,  §§   437-452. 
MUTUALITY  of  consent,  §  1580. 

Of  intention,  contract  interpreted  to  give,  §  1636. 

NAME,  adopted  child,  of,  §  228. 

Certificate  on  change  of  partnership,   §   2469. 

Change  of  partnership,  as  notice  of  dissolution,  §  2454. 

Corporate,  to  be  stated  in  articles,  §  290. 

Corporation,  name  of,  prohibitions  in  regard  to,  §  296. 

Corporation,  change  of  name  by:      See  Corporations, 
III. 

Error  in  corporate,  §  357. 

Fictitious,  in  partnership,  §§  2466,  2467. 

Misnomer  of  corporate  name,  effect  of,  §  357. 

Partnership  under  fictitious,  §§  2466,-2471. 
NAVIGABLE  WATERS:     See  Waters. 

State  owns  land  below  water  of,  §  670. 
NAVIGATION:     See  Shipping. 
NECESSARIES,  husband's  liability  for,   §  174. 

Infants'  contract  for,  cannot  be  disafiirmed,  §  36. 

Liability  of  husband   for   necessaries   furnished   wife, 
§  174. 

Lunatic's  liability  for,  §  38. 


944  NECESSARIES — NEGOTIABLE    INSTRUMENTS,   I. 

Parent  not  liable  for  support  furnished  child,  §  208. 
'         Parent   when   liable   for   necessaries   furnished    child, 
§  207. 
Promise  of  child  to  pay  for  those  furnished  parent, 

§   206.- 
Third  person  may  furnish  child,  §  207. 
NEGLIGENCE,  agent's,  principal's  liability  for,  §  2338. 
Borrower  to  repair  injuries  caused  by,  §  1889. 
Carrier  cannot   exonerate  from,   §   2175. 
Contributory,  passenger  violating  rules,  §  484. 
Depositary's  liability  for,  §§  1838,  1840. 
Divorce  for  neglect,  §§  92,  107. 
Employee's  liability  for,  §  1990. 
Hirer,  care  required  of,  §  1928. 
Hirer  to  repair  injuries  caused  by,  §  1929. 
Insurer  not  exonerated  by,  §  2629. 
Passenger  violating  rules  and  instructions,  §  484. 
Pilot's,  liability  of  shipmaster  for,  §  2384. 
Shipmaster's  liability  for,  §§  2043,  2383. 
Want  of  ordinary  care  or  skill,  liability  for,  §  1714. 
Willful  acts,  liability  for,   §  1714. 
NEGOTIABLE   INSTRUMENTS. 

i.     Definitions  and  kinds  of;  code  provisions  relating 

to. 
II.     Execution    and    form    of;    conditions   and    stipula- 
tions in. 

III.  Consideration. 

IV.  Construction    of. 
V.     Bills  of  exchange. 

VI.  Promissory  notes. 

VII.  Checks. 

VIII.  Indorsement. 

IX.  Maturity  of;   days  of  grace. 

X.  Presentment  and   demand.  , 

XI.  Acceptance. 

XII.  Dishonor  and  notice. 

XIII.  Protest. 

XIV.  Payment. 

I.     Definitions  and  kinds  of;  code  provisions  relating  to. 

Bank  notes  are,  §  3261. 

Bank  note  is  negotiable  even  after  payment,  §  3261. 

Bill  of  exchange  is  negotiable  instrument,  §  3095. 


NEGOTIABLE   INSTRUMENTS,   I,   II,    III,   IV.  945 

Bill  of  lading,   §§   2127,  2128. 

Bond  is,  §  3095. 

Certificate  of  deposit  is,  §  3095. 

Check  is  negotiable  instrument,  §  3095. 

Code  provisions  apply  to  what  instruments,  §  3086. 

Foreign  bill,  defined,  §  3224. 

Inland  bill  defined,  §  3224. 

Kinds  of,  enumerated,  §  3095. 

Negotiable  instruments  defined,  §  3087. 

Note  defined,  §  3244. 

Promissory  note  is,  §  3095. 

What  instruments  are  negotiable,  §  3095. 

II.  Execution   and   form  of;    conditions  and  stipulations 

in. 

Absolute,  must  be,  §  3088. 

Allonge,  §  3110. 

Alternative,  instrument  in,  §  3090. 

Blank,  liability  to  endorsee,  §  3125. 

Condition,  must  be  for  unconditional  payment  of  money, 

§  3088. 
Contain,  what  it  must  not,  §  3093. 
Date,  any  may  be  inserted,  §  3094. 
Date,  nominal,  §  3094. 
Date  not  essential,  §  3091. 
Death  of  maker  at  time  of  nominal  date,  §  3094. 
Incapacity  of  maker  at  time  of  nominal  date,  §  3094. 
Money  must  be  payable  in,  §  3088. 
Must  not  contain  other  contract,  §  3093. 
Option,  negotiable  instrument  giving,  §  3090. 
Payee  must  be  ascertainable,  §  3089. 
Pledge  of  collateral  may  contain,  §  3092. 
Unconditional,  must  be,   §  3088. 

III.  Consideration. 

Effect  of  want  of,  §  3122. 
Presumption  of,  §  3104. 

IV.  Construction  of. 

Bearer,  payable  to,  how  construed,  §  3101. 
Construction  of  bill  payable  to  person  or  his  order, 

§  3101. 
Fictitious    person,    payable    to    without    endorsement, 

effect  of,  §  3102. 


946  NEGOTIABLE  INSTRUMENTS,  IV,  V,  VI,  VII,  VIII. 

Maker,  payable  to  without  indorsement,  effect  of,  §  3102. 
Order,  payable  to,  how  construed,  §  3101. 
Payable  to  person  or  order,  how  construed,  g  3101. 
Payee  fictitious,  payable  to  bearer,  §  3103. 

V.  Bills  of  exchange. 

Days  of  grace  not  allowed,  §  3181. 

Deemed  a  note,  when,  §§  3245,  3246. 

Defined,  §  3171. 

Drawee  in  case  of  need,  §  3172. 

Drawer's  rights  and  obligations,  §  3177. 

Foreign  bill  defined,  §  3224. 

Inland  bill  defined,  §  3224. 

In  parts  of  a  set,  §§  3173,  3175. 

Payable  where,  bill  is,   §  3176. 

Is  negotiable  instrument,  §  3095. 

Set,  in  a,  §§  3173-3175. 

Wheft  must  be  in  a  set,  §  3174. 

VI.  Promissory    notes. 

Code  sections  applicable  to,  §  3247. 

Defined,  §  3244. 

Is  negotiable  instrument,  §  3095. 

Note,  bill  is  deemed  a,  when,  §§  3245,  3246. 

VII.  Checks. 

Code  sections  applicable  to,  §  3255. 
Defined,  §  3254. 

Effect  of  delay  in  presentment,  §  3255. 
Indorsee  after  maturity,  without  notice,  §  3255. 
Is  negotiable  instrument,   §  3095. 
VIM.     Indorsement. 

Before  delivery,  liability  on,  §  3117. 

Destruction  of  negotiability  by  endorser,  §  3115. 

General,   how  made   special,    §   3114. 

General,  is  what,  §  3112. 

General,  special  indorsement  can  not  be  made  alter, 

§   3114. 
Indorse,  agreement  to,  duty  on,  §  3109. 
Indorsee  in  due  course  is  who,  §  3123. 
Indorsee  in  due  course,  rights  of,  §  3124. 
Indorsee  of  check  after  maturity,  §  3255. 
Indorsee  privy  to  contract,   §  3120. 
Indorsee,  rights  of,  §  3120. 


NEGOTIABLE   INSTRUMENTS,   VIII,    IX,   X,  947 

Indorser,  discharge  of  by  delay,  §  3248. 

Indorser,  implied  warranty  of,  §  3116. 

Indorser,  liability  of  in  general,  §  3116. 

Indorser,  who  is,  §  3108. 

Is  special  or  general,   §   3111. 

Is  what,  §  3108. 

On  separate  paper,   §  3110. 

Presumption  of  consideration,  §  3104. 

Special,  is  what,  §  3113. 

Special,  to  destroy  negotiability,  §  3115. 

Unindorsed  note,  effect  of,  §  3102. 

Without  recourse,  and  effect  thereof,  §§  3118,  3119. 

IX.  Maturity  of;  days  of  grace. 
Days  of  grace,   §   3181. 

Maturity  apparent,  is  when,  §  3132. 
Maturity  apparent,  of  bill  payable  at  sight,  §  3134. 
Maturity,  apparent,  of  note,  §§  3135,  3136. 
Maturity,  where  last  day  falls  on  holiday,  §  3132. 

X.  Presentment   and    demand. 

Demand,  effect  of  want  of  on  principal  debtor,  §  3130. 

Demand  not  necessary,   §   3130. 

Presentment,  accepted  for  honor  and  notice  of  non- 
payment, §  3206. 

Presentment  at  particular  place,  §  3130. 

Presentment,   delay  in   excused,   when,   §§   3158,   3219. 

Presentment,   delay  in,   exoneration  of  parties,  §  3189. 

Presentment,  drawer,  exoneration  of  by  delay  in,  §§ 
3189,    3213,    3214. 

Presentment,  effect  of  delay,  §§  3213,  3214. 

Presentment  excused  as  to  whom,   §§  3156,  3157. 

Presentment  excused  when,  §§  3176,  3186,  3218,  3220. 

Presentment,  indorser,  exoneration  of  by  delay  in, 
§§    3189,    3213,    3214. 

Presentment,   made  how,   §   3186. 

Presentment,  necessity  of  where  acceptance  refused, 
§   3212. 

Presentment  of  check,  effect  of  delay  in,  §  3255. 

Presentment  of  note,  effect  of  delay  in,  §  a248. 

Presentment  of  part  of  bill  in  set,  §  3175. 

Presentment,  of  single  part  of  set,   §  3175. 

Presentment,  place  of,   §   3212. 


948  NEGOTIABLE    INSTRUMENTS,    X.    XI.    XII. 

Presentment,  place  of  where  not  accepted,  §  3211. 
Presentment,  rules  for  making,   §   3131. 
Presentment,  time  for,  §§  3131,  3185,  3189. 
Presentment  to  drawee  in  case  of  need,   §   3188. 
Presentment  to  one  of  several  joint  drawees,  §  3187. 
Presentment  to  principal  debtor  not  necessary,  §  3130. 
Presentment,  waiver  of,   §§  3159,  3160. 

XI.  Acceptance. 

Admits  what,   §  3199. 

By  refusal  to  return,  §  3195. 

By  separate  instrument,  §§3110,  3196. 

Cancellation  of,  §  3198. 

Foreign  bill,  acceptance  for  honor,  §§  3203,  3233. 

Holder  entitled  to  on  face  of  bill,  §  3194. 

Honor,  acceptance  for,  §§  3203-3207. 

Honor,  acceptance  for  does  not  excuse  notice,  §  3207. 

Honor,  acceptance  for,  how  made  and  enforced,  §§ 
3205,    3206. 

Honor,  acceptance  for,  presentment  and  notice  of  dis- 
honor,  §   3206. 

Honor,  acceptor  for  reimbursement  of,  §  3205. 

Honor,  acceptor  for  to  give  notice,  §  3205. 

Made  how,  §  3193. 

Presentent  for  to  one  of  several  joint  drawees,  §  3187; 

Presumption  of  consideration,   §  3104. 

Promise  of,  sufficiency  of,  3197. 

Qualified,    §    3195. 

Single  part  of  a  set,  acceptance  of,  §  3175. 

Sufficiency  of  when  made  with  owner's  consent,  § 
3195. 

What  sufficient,  §  3195. 

XII.  Dishonor    and    notice. 
Dishonor  is  what,   §  3141. 

Dishonor  of  bill  payable  after  sight,  presumption  of, 

§  3133. 
Dishonor   of  foreign   bill,   damages   for,    §§    3234-3238, 

3303. 
Foreign  bill,  notice  of  where  protest  waived,   §  3232. 
Foreign  bill,  notice  of  protest  necessary,   §   3225. 
Notice  of,  additional  time  for,  §  3150. 
Notice  of,  after  death,   §  3146. 
Notice  of  by  agent,  §  3149. 


NEGOTIABLE   INSTRUMENTS,   XII,   XIII,   XIV.  949 

Notice  of  by  subagent,   §  3149. 

Notice  of,  delay  in  excused,  when,  §  3158. 

Notice  of  by  indorser,  time  for,   §   3150. 

Notice  of,  effect  of,  §   3151. 

Notice  of,  excused  as  to  whom,  §§  3156,  3157. 

Notice  of  excused  wlien,  §§  3155,  3220. 

Notice  of,  form  of,  §  3143. 

Notice  of  given  in  ignorance  of  death,  §  3146. 

Notice  of  inures  to  benefit  of  others,  §  3151. 

Notice    of   non-payment    of    bill    accepted    for    honor, 

§   3206. 
Notice   of   not   excused   by   acceptance   for   honor,    § 

3207. 
Notice  of  served  how,  §  3144. 

Notice  of  served  how  after  death  of  indorser,  §  3145. 
Notice  of,  time  for  giving,  §  3147. 
Notice  of,  time  for  mailing,  §  3148. 
Notice  of,  to  whose  benefit  inures,   §  3151. 
Notice  of,  waived,  §  3155. 
Notice  of,  waiver  of,  §§  3159,  3160. 
Notice  of,  who  may  give,  §  3142. 

XIII.  Protest. 

By  whom  made,  §  3226. 

Foreign   bill,    notice   of   dishonor,   protest   necessary, 

§    3225. 
Foreign  bill,  waiver  of  protest  and  effect  of,   §  3232. 
How  made,  §  3227. 
Notice  of  given  how,  §  3231. 
Time  for  making,   §   3229. 
Waiver  of,  effect  of,  §  3160. 
Waiver   of,    §    3232. 
When  excused,   §  3230. 
Where  made,  §  3228. 

XIV.  Payment. 

Bill  of  exchange  is  payable  where,  §  3176. 

Conditions  that  may  be  demanded  on,  §  3137. 

Extinction  by  payment,   §   3164. 

Extinction  in  general,  what  constitutes.  8  3164. 

Extinguishes,  §  3164. 

For  honor,   §§   3203,   3204. 

For  honor,  declaration  of,   §   3233. 

Instrument  need  not  be  surrendered  on,  when,  §  3137. 


950  NEGOTIABLE    INSTRUMENTS,    XIV— NOTICE. 

Instrument   payable   at   particular   time   and   place,    § 

3130. 
Lost  note,   indemnity,    §   3137. 
Offer  of  what  equivalent  to,  §  3130. 
Of  part  of  bill  in  set,  §  3175. 
Payable  at  particular  time  and  place,  offer  of  payment, 

§   3130. 
Payor  for  honor,  reimbursement  of,   §  320?. 
Payor  for  honor  to  give  notice  of  payment,  §  3205. 
Place  of  not  specified,  §  3100. 
Surrender  of  instrument  a  condition  of,  §  3137. 
Time  of  not  specified,   when  payable,   §   3099. 
Time  or  place  of,  need  not  be  designated,  §  3091. 
NEGROES.     Marriages  between  negroes  and  whites  void, 

§§  60,  69. 
NEUTER  GENDER  included  in  masculine,  §  14. 

NEUTRAL    PAPERS,    implied    warranty,    in    marine    in- 
surance, §  2688. 
NEWSPAPERS,  reports  of  public  meetings  are  privileged, 

§§   47,   48. 
NOMINAL  DAMAGES,  when  allowed,  §  3360. 
NON-NEGOTIABLE     INSTRUMENTS,     transfer    of    non- 
negotiable  instrument,   §   1459. 
NON-RESIDENT,  adoption  proceedings,  §§  224,  226. 

Alien,  inheriting,  when  must  make  claim  within  five 

years,   §   672. 
Assignment  for   creditors   by,   §§   3449,   3451. 
Transfer  of  stock  by,  §  326. 
NOTARY,  acknowledgment,  may  take,   §§  1181,  1182. 
Acknowledgment  or  proof  in  state,   §  1181. 
Acknowledgment  or  proof  out  of  state,   §  1182. 
Acknowledgment    or    proof    out    of   United    States,    S 

1183. 
Bill  protested  by,  when,  §  3226. 
Making  protest,  may  give  notice,  §  3231. 
NOTE:     See   Negotiable   Instruments. 

NOTICE,  abandonment  of  ship  to  insurer  by,  §§  2721,  2722. 
Abatement  of  nuisance,  of,  §  3503. 
Acceptance  of  guaranty,  notice  of,   §   2795. 
Action  for  possession,  not  necessary  before,  §  793. 


NOTICE.  951 

Actual,  is  what,  §  18. 

Adverse  claim  to  deposit,  to  depositor,   §  1825. 

Agent,  to,  as  notice  to  principal,  §  2332. 

Appropriation   of  water,   of,   §§   1415,   1416. 

Assessment  of  stock,  of,   §§   335-339. 

Carrier  or  depositary,  necessary  to  stoppage  in  transit, 

§   3079. 
Change  of  corporation's  principal  place  of  business, 

§   321a. 
Change  of  name  as,  §  2454. 
Constructive,  facts  to  put  one  on  inquiry,  §  19. 
Constructive,    from    knowledge    of    facts    putting    on 

inquiry,   §   19. 
Constructive,  is  what,   §   18. 
Delay  in,  how  waived,   §   2636. 
Delinquent  assessment,   §§  337-339. 
Depositary  must  give  to  real  owner,   §   1826. 
Directors  and  stockholders,  posting,  §  321. 
Dishonor,  of,   §§   3141-3159. 

Duty  of  gratuitous  depositary  ceases  upon,  §  1847. 
Ejectment  without  notice,   §   793. 
Election  of  directors  of  corporation,  §  302. 
Filing  inventory  of  wife's  property  as,  §  166. 
Form,   §  3143. 
Found,  of  thing,   §  1865. 
Five  days'  notice  of  transfer  of  stock  in  trade  to  be 

recorded,   §   3440. 
Freight,  of  arrival  of  to  consignee,  §  2120. 
Freight,  of  storage  of  to  consignee,  §  2121. 
Guaranty,  notice  of  default,   §   2808. 
Hirer  of  personal  property  may  repair  after,   §  1957. 
Hirer  of  real  property  may  repair  after,  §  1942. 
Hiring  terminated   by  notice  of  death  or  incapacity, 

§  1934. 
Innkeeper   exempted   by   giving,    §    1860. 
Inquiry,  of  facts  to  put  one  on,  §  19. 
Instruments    not   avoided    against    purchaser    with,    § 

1228. 
Insurance,  of  loss  under,  §  2633. 
Insurance,  of  loss  under,  defects  in  waived,  §  2635. 
Is  actual  or  constructive,  §  18. 
Lease,  terms  of  may  be  changed  by  notice,  §  827. 


862  NOTICE— NUISANCE. 

Letter  of  credit,  to  writer  of,  §  2865. 

Life  insurance  policy,  of  transfer  of,  §  2765. 

Meeting,  of  election  by  stockholders,  §  302. 

Meeting  to  remove  directors,  of,  §  310. 

Partnership,    dissolution    of,    §§    2453,    2454,    2509. 

Partnership,    of   renunciation    of,    relieves    partner,    | 
2417. 

Pledge,  of  sale  of,  §§  3002,  3003. 

Principal  or  agent,  when  deemed  to  other,  §  2332. 

Principal's  default,   guarantor  not  entitled   to,   §  2808. 

Protest,  of,    §    3231. 

Purchaser  for  value  without,  §§  856,  869. 

Record  as,  §  1207. 

Record  of  assignment  of  mortgage  as,  §§  2934,  2935. 

Record  of  conveyance  as,   §   1207. 

Record  of  instrument  as,  §  1213. 

Re-enter,  of  intention  to,  §  791. 

Sale  of  deposit  in  danger  of  perishing,   §  1837. 

Selection  of  one  of  several  alternatives,  §  1449. 

Selection  of  place  of  delivery,  §  1756. 

Stockholders,    of   meeting   to    continue    corporate    ex- 
istence,  §   287. 

Tenancy  at  will,  termination  of,  §  789. 

Tenant  at  will,  to  quit,  §§  789,  790. 

Tenant  to  give  landlord  of  adverse  proceeding,  §  1949. 

Termination  of  hiring,   §   1934. 

Terminates  employment,   §   1999. 

Trustee,   of  adverse   interests,    §   2233. 

Unrecorded    instrument   valid   between   parties   with, 
§   1217. 

Waiver  of  defects  in,  §  2635. 

See  Negotiable  Instruments. 
NOVATION  defined,  §  1530. 

Made  by  a  contract,   §  1532. 

Modes  of,   §   1531. 

Rescission  of,  grounds  for,  §  1533. 

Subject  to  rules  governing  contracts,  §  1532. 

Substitution  of  obligation,  §  1531. 

Substitution  of  parties,  §  1531. 
NUISANCE,  abatement  does  not  preclude  action,  §  3484. 

Abatement  of  a  private,   §   3501. 

Abatement  of  a  private,  notice,   §   3503. 


NUISANCE— obligation:  953 

Abatement  of  a  private,  when  allowed,   §   3502. 

Abatement  of  a  public,  §  3491. 

Abatement  of  a  public,  by  whom,   §  3494. 

Abatement  of  a  public,  how,   §   3495. 

Abatement  not  to  prejudice  right  to  damages,  §  3484. 

Defined,   §  3479. 

Indictment  for  public,  §§  3491,  3492. 

Information  for  public,  §§  3491,  3492. 

Notice  of  abatement,  §  3503. 

Private  action  for  a  public,   §  3493. 

Private,  is  what,  §  3481. 

Public,  defined,  §  3480. 

Public,  private  action  for,   §  3493. 

Remedies  for  a  private,  §  3502. 

Remedies  for  a  public,   §  3491. 

Successive  owners,  liability  of,   §  3483. 

Time  does  not  legalize  a  public,   §  3490. 

What  not  deemed  a,   §  3482. 

NUMBER,  singular  or  plural,  of  words  in  code,  §  14. 
NUNCUPATIVE  WILL,  §§  1288-1291. 
OATH,  defined,  §  14. 

Homestead  appraisers,  of,  §  1250. 

Includes  what,  §  14. 

Officer   taking  proof   of   instrument   may   administer, 
§  1201. 

Person  solemnizing  marriage  may  administer,  §  72. 

Person     taking    acknowledgment    authorized    to    ad- 
minister, §  1201. 

OBLIGATION:    See  Contract. 
Accord  defined,  §  1521. 
Accord,  effect  of,  §  1522. 
Act  of  God  excuses  performance,  g  1511. 
Alteration  of  contracts:    See  Contracts. 
Alternative,  right  of  selection,  how  lost,  §  1449. 
Alternatve,  right  of  selection,  who  has,  §  1448. 
Alternatives  indivisible,  selection  in  case  of,  §  1450. 
Alternative,  nullity  of  one,  §  1451. 
Application  of  payment  to,  §  1479. 
Application  of  performance,  by  creditor,  §  1479. 
Application  of  performance,  order  of,  §  1479. 
Application  of  performance,  rescission  of,  §  1479. 


854  OBLIGATION. 

Arises  from  agreement  or  operation  of  law,  §  1428. 

Arises,  how,  §  1428. 

Arising  from  obligation  of  law,  how  enforced,  §  1428. 

Assuming,  by  accepting  benefits,  §  1589. 

Conditional,  when,  §  1434. 

Condition  concurrent  defined,  §  1437. 

Condition  concurrent,  performance  of,  §  1498. 

Conditions,  impossible,  void,  §  1441. 

Conditions,  kinds  of,  §  1435. 

Conditions  of  forfeiture,  construed  how,  §  1442. 

Conditions,  performance  of,  when  essential,  §  1439. 

Condition  precedent  defined,  §  1436. 

Condition  precedent,  performance  of,  §  1498. 

Conditions,  repugnant,  void,  §  1441. 

Condition  subsequent  defined,  §  1438. 

Condition,  unlawful,  void,  §  1441. 

Consideration,    ratable   proportion   when   performance 

prevented,  §  1514. 
Consideration:    See  Contracts. 
Contribution  between  joint  obligors,  §  1432. 
Covenants,  apportionment  of,  §  1467. 
Covenants  running  with  land,  §§  1460-1468. 
Created  how,  §  1428. 

Damages,  limitation  on  amount  of,  for  breach,  §  3358. 
Defined,  §  1427. 

Duty  to  abstain  from  injury  to  others,  §  1708. 
Extinguished  by  performance,  §  1473. 
Extinguishment  of  offer  by  performance,  §§  1485-1505. 
Extinguishment  by  performance,  §§  1473-1479. 
Forfeiture,  construed  how,  §  1442. 
Imposed  by  law,  §§  1708-1717. 
Impossible  conditions,  void,  §  1441. 
Infant  cannot  disaffirm  what,  §  37. 
Interest  stopped  by  offer  of  performance,  §  1504. 
Interpretation,  general  rules  of,  §  1429. 
Interpretation:    See  Contracts. 
Joint  debtors,  release  of,  §  1543. 
Joint,  presumption  in  favor  of,  §  1431. 
Joint,  several,  etc.,  §  1430. 
Joint,  when,  §  1431. 

Law,  creating  and  enforcing  by  operation  of,  §  1428. 
Law  imposes  what,  §§  1708-1717. 


OBLIGATION.  955 

Mistake:    See  Mistake. 

Offer  of  performance,  effect  of,  §  1485. 

Payment,  application  to  obligations,  §  1479. 

Payment  is  what,  §  1478. 

Payment,  tender  and  deposit  extinguish  demand,  §  1500. 

Pecuniary,  extinction  by  tender,  §  1500. 

Performance,  application  of  act  by  way  of,  §  1479. 

Performance  by  one  joint  debtor,  effect  of,  §  1474. 

Performance,  compensation  for  delay,  §  1492. 

Performance,  conditional  offer  of,  §  1494. 

Performance,  creditor's  retention  of  thing  he  refuses  to 

accept,  §  1505. 
Performance,  custody  of  thing  offered,  §  1503. 
Performance,  delay  in,  compensation,  §  1492. 
Performance,  directions  by  creditors,  effect  of,  §  1476. 
Performance  excused  by  what,  §§  1440,  1511. 
Performance  excused  when,  §§  1440,  1511. 
Performance  extinguishes,  §  1473. 
Performance,  notice  that  one  will  not  perform,  §  1440. 
Performance  of  conditions  essential,  when,  §  1439. 
Performance  of  conditions  precedent  and  concurrent, 

§  1498. 
Performance,  offer  of,  ability  essential,  §  1495. 
Performance,  offer  of,  conditional,  §  1494. 
Performance,  offer  of,  creditor's  retention  of  thing  he 

refuses  to  accept,  §  1505. 
Performance,  offer  of,  effect  on  accessories,  §  1504. 
Performance,  offer  of,  extinguishes,  §  1485. 
Performance,  offer  of,  objections  to,  §  1501. 
Performance,  offer  of,  partial,  §  1486. 
Performance,  offer  of,  stops  interest,  §  1504. 
Performance,  offer  of,  to  be  in  good  faith,  §  1493. 
Performance,  offer  of,  to  be  made  by  whom,  §  1487. 
Performance,  offer  of,  to  be  made  when,  §§  1490,  1491. 
Performance,  offer  of,  to  be  made  where,  §§  1488,  1499. 
Performance,  offer  of,  to  be  made  where  and  to  whom, 

1488. 
Performance,  offer  of,  waiver  of  objections  to,  §  1501. 
Performance,  offer  of,  where  no  time  fixed,   §§  1490, 

1491. 
Performance,  offer  of,  willingness  essential,  §  1495. 
Performance,  offer  of:     See  Offer  of  Performance. 


856  OBLIGATION — OFFER    OF    PERFORMANCE. 

Performance,  partial,  effect  of,  §  1477. 

Performance,  part,  in  satisfaction,  §  1524. 

Performance  prevented  by  creditor,  §  1512. 

Performance  prevented,  ratable  proportion  of  consider- 
ation, §  1514. 

Performance,  production  of  thing  to  be  delivered  not 
necessary,  §  1496. 

Performance,  refusal  to  accept  offer  of,  §  1515. 

Performance,  thing  offered  to  be  kept,  how,  by  obligor, 
§  1503. 

Performance,  thing  offered  to  be  kept  separate,  §  1497. 

Performance,  title  to  thing  offered,  §  1502. 

Performance  to  one  joint  creditor,  effect  of,  §  1475. 

Property,  is,  §  1458. 

Receipt,  right  to  require,  §  1499. 

Refusal  to  accept  offer  of  performance,  §  1511. 

Release  extinguishes,  §  1541. 

Release,  general,  extent  of,  §  1542, 

Release  of  joint  debtor's,  §  1543. 

Satisfaction  defined,  §  1523. 

Satisfaction,  part  performance  in,  §  1524. 

Statute  of  frauds,  in  general,  §  1624. 

There  may  be  ownership  of  obligations,  §  655. 

Transfer  of  burden  of,  §  1457. 

Transfer  of  non-negotiable  instrument,  §  1459. 

Transfer  of  right,  §  1458. 

Transfer  of  rights  arising  out  of,  §  1458. 

Unlawful  conditions,  void,  §  1441. 

Waiver  of  objections  to  offer  of  performance,  §  1501. 

Warranty  on  sale  of  written  instrument,  §  1774. 
See  Contracts. 
OCCUPANCY,  title  by,  §§  1000,  1006. 

Title,  when  acquired  by,  §  1007. 
OFFER,  absolute,  must  be,  §  1585. 

Acceptance,  how  made,  §  1582. 

Of  guaranty,  not  binding,  §  2795. 

Revoked,  how,  §  1587. 

Revoked,  when,  §  1586. 

What  deemed,  §  1584. 
OFFER     OF     PERFORMANCE,     ability    and    willingnesB, 
when  equivalent  to,  §  3130. 

By  any  person  exonerates  surety,  §  2839. 


OFFER    OF    PERFORMANCE — OFFICER  957 

By  whom  made,  §  1487. 

Effect  of,  on  accessories  or  obligation,  §  1504. 

Effect  of  refusal  to  accept  performance  made  before, 
§  1515. 

Extinguishes  obligation,  §  1485. 

Extinguishes  obligations  for  payment  of  money,  when, 
§  1500. 

How  to  be  kept  by  debtor,  §  1503. 

Lien  redeemed  by,  §  2905. 

Must  be  unconditional,  §  1494. 

Objections  to  mode,  when  waived,  §  1501. 

Of  concurrent  conditions,  when  necessary,  §  1439. 

Partial,  §  1486. 

Party  must  be  able  to  perform,  §  1495. 

Passes  title  to  personal  property  under  executory  agree- 
ment of  sale,  §  1141. 

Receipt  may  be  required  upon,  §  1499. 

Thing  offered  need  not  be  produced,  §  1496. 

Thing  offered  to  be  kept  sepafate,  §  1497. 

Thing  offered,  vests  in  creditor,  §  1502. 

To  be  in  good  faith,  §  1493. 

To  whom  made,  §  l4^8. 

Unconditional,  except  as  to  certain  cases,  §  1498. 

What  excuses,  §§  1440,  1511. 

When  made,  §§  1490,  1491. 

Where  made,  §  1489. 

With  compensation  for  delay,  §  1492. 
See  Obligations. 
OFFICE,  injunction  not  granted  to  prevent  exercise  of, 

§  3423. 
OFFICER.     Apprentice,  officer  binding  out  to  inquire  into 
age,  §  270. 

Apprenticeship,  indenture  of  by,  copy  to  be  filed  with 
county  clerk,  §  273. 

Apprenticeship,  power  to  bind  to,  §  269. 

Conveyance  by,  interpreted  in  favor  of  grantor,  §  1069. 

Joint  authority  of,  construction  of,  §  12. 

Lien  of,  for  levy  of  writ,  §  3057. 

Powers  of  officers  authorized  to  take  proof  of  instru- 
ments, §  1201. 

Uncertainty  in  contract  of  officer,  presumption  as  to, 
§  1654. 


958  OLOGRAPHIC    WILL— PARENT    AND    CHILD. 

OLOGRAPHIC  WILL,  §  1276. 
OMISSIONS  in  will,  how  corrected,  §  1340. 
OPPRESSION  avoids  contract,  §§  1567,  1569. 

Exemplary  damages  in  case  of,  §  3294. 

Interest  as  damages  in  case  of,  §  3288. 
OPTION  as  to  delivery,  notice  of,  must  be  given,  §  1756. 

As  to  place  of  offering  performance,  §  1489. 

Beneficiary,  of,  in  breach  of  trust,  §  2237. 

Negotiable  instrument  giving,  §  3090. 

Of  owner  in  confusion  of  goods  as  to  value  of  thing, 
§  1032. 

Payee,  of,  as  to  payment,  §  3090. 

Selection  between  alternatives,  §§  1448-1450. 

Time  for  exercise  of,  §  1756. 

Waived,  how,  §  1756. 
ORAL  OBLIGATION:    See  Statute  of  Frauds. 
ORPHAN,  apprenticing:    See  Apprenticeship. 
ORPHAN  ASYLUM,  adoption  of  child  from,  §  224. 

Establishing  by  corporation,  §  595. 

Guardians  for  infants  maintained  in,  p.  723,  Stats. 

Managers  may  consent  to  apprenticeship,  when,  §  265. 
OSTENSIBLE  OWNER,  pledge  by,  §  2991. 
OVER-INSURANCE  by  successive  policies,  §  2622. 

Effected  by  simultaneous  policies,  contribution,  §  2621. 

Return  of  premium  on,  §  2620. 
OWNERSHIP:     See  Property. 

PARENT  AND  CHILD.    Abandoned  child,  parent  forfeits 
guardianship  of,  §  246. 

Abduction  of  child,  §  49. 

Abuse,  parental,  remedy  for,  §  203. 

Adoption  of  child,  §§  221-230.     See  Adoption. 

Adult  child,  compensation  and  support  of,  §  210. 

Apprenticeship:    See  Apprenticeship. 

Authority  of  parent  ceases,  when,  §  204. 

Children,  support  and  maintenance  of:    See  Divorce. 

Compensation  of  adult  child,  §  210. 

Custody,  decree  awarding,  modifying,  §  199. 

Custody,  exclusive,  when  husband  or  wife  may  sue  for, 
§  199. 


PARENT    AND    CHILD.  959 

Custody,  father  cannot  transfer  without  mother's  con- 
sent, §  197. 

Custody  in  general,  §  197. 

Custody  of  child  of  annulled  marriage,  §  85. 

Custody  of  illegitimate,  §  200. 

Custody  on  abandonment  by  father,  §  197. 

Custody,  parent  may  relinquish,  §  211. 

Custody,  rules  for  awarding,  §  246. 

Custody,  rules  for  awarding  when  parents  separated, 
§  214. 

Custody  when  parents  separated,  §  198. 

Custody,  wife  may  obtain,  when,  §  214. 

Custody:    See  Divorce. 

Domicile  of  child,  parent  may  determine,  §  213. 

Education  of  child,  duty  of  parents,  §  196. 

Education  of  child,  obligations  of  parents,  §  196. 

Emancipation  of  child,  §  211, 

Guardian,  appointment  of,  ends  parental  authority, 
§  204. 

Guardian  of  property,  parent  has  no  power  as,  without 
appointment,  §  242. 

Guardianship:    See  Guardian  and  Ward. 

Illegitimacy  of  child,  how  proved,  §  195, 

Legitimacy  of  children  born  after  dissolution  of  mar- 
riage, §  194. 

Legitimacy  of  children  born  in  wedlock,  §  193. 

Legitimacy  of  children,  who  may  dispute,  §  195. 

Legitimized,  child  becomes  by  marriage  of  parents, 
§  215. 

Marriage  of  infant  ends  parental  authority,  §  204. 

Necessaries  furnished  child,  liability  of  parent,  §  207, 

Necessaries  furnished  child,  parent  not  liable  for,  when, 
§  208. 

Necessaries  furnished  parent,  child's  promise  to  pay, 
§  206. 

Necessaries,  third  person  may  furnish  child,  when 
parent  neglects  to,  §  207. 

Parental  abuse,  remedy  for,  §  203. 

Parental  authority  ceases,  when,  §  204. 

Parent,  allowance  to,  out  of  child's  property,  §  201. 

Posthumous  children,  property  rights  of,  §  698. 

Property  of  child,  parent  has  no  control  over,  §  202. 


960  PARENT    AND     CHILD— PARTNERSHIP. 

Relinquishment  of  services  and  custody  of  child,  §  211, 

Relinquishment  presumed  from  abandonment,  §  211. 

Residence  of  child,  parent  may  determine,  §  213. 

Seduction  of  daughter,  §  49. 

Services  of  adult  child,  §  210. 

Services    of    child,    father    cannot    transfer    without 

mother's  consent,  §  197. 
Services  of  child,  parent  may  relinquish,  §  211. 
Stepfather's  rights  and  liabilities,  §  209. 
Support  furnished  child,  parent  not  liable  for,  when, 

§  208. 
Support  of  adult  child,  §  210. 
Support  of  child  enforced  when  freed  from  parental 

domination,  §  203. 
Support  of  children,  obligation  for,  §  196. 
Support  of  child,  when  parent  dies  without  providing 

for,  remedy,  §  205. 
Support  of  wife's  children,  husband  not  liable  for,  §  209. 
Support,  reciprocal  duties  of,  §  206. 
Wages  may  be  paid  to  child,  when,  §  212. 
Ward,  marriage  of,  §  254. 
PAROL  OBLIGATIONS:    See  Statute  of  Frauds. 
PARTIES.      Third    person    can    enforce    contract   for    his 

benefit,  §  1559. 
PARTITION,  easement  of,  §  807. 
PARTNERSHIP.    Account,  mutual  liability  of  partners  to, 

§  2412. 
Account,  partners  must  for  profits  of  adverse  business, 

§  2438. 
Adverse  business,  partner  may  not  engage  in,  §  2436. 
Agent,  partner  is  for  firm,  §  2429. 
Agent,  partner  liable  as,  §  2443. 
Arbitration,  partner  may  not  submit  to,  §  2430. 
Assignment  for  creditors,  partner  may  not  make,  §  2430. 
Assignment,  partner  may  not  make,  §  2430. 
Authority  of  majority  of  partners,  §  2428. 
Authority  of  partner,  §  2429. 
Authority  that  partner  has  not,  §  2430. 
Bad  faith,  whether  acts  of  partner  in,  binding,  §  2431. 
Compensation    of    partner    for    services    to    firm,    no, 

§  2413. 


PARTNERSHIP.  061 

Confess  judgment,  partner  may  not,  §  2430. 

Confidential,  partners'  relations  are,  §§  2410,  2411. 

Debts  barred,  liquidating  partner  cannot  revive,  §  2462. 

Debts,  partner  may  require  application  of  firm  property 
to,  §  2405. 

Defined,  §  2395. 

Dissolution  as  to  one  partner  notwithstanding  agree- 
ment, §  2451. 

Dissolution  by  will  of  partner,  §  2450. 

Dissolution,  death  dissolves,  §  245. 

Dissolution,  judgment  of,  §  2450. 

Dissolution,   judgment   of,   partner   entitled   to,   when, 
§  2452. 

Dissolution  of,  liability  thereafter  to  persons  without 
notice,  §  2453. 

Dissolution  of,  notice  of,  §§  2453,  2454, 

Dissolution  of,  notice  by  change  of  name,  §  2454. 

Dissolution  of,  on  renunciation  by  partner,  §  2418. 

Dissolution  of,  partner's  powers  after,  §§  2458-2462. 

Dissolution  of,  what  works,  §  2540. 

Dissolution,  partial,  §  2451. 

Dissolution,  transfer  of  interest  dissolves,  §  2450. 

Dissolution;  war  dissolves,  §  2450. 

Dissolution,  when  partner  entitled  to,  §  2452. 

Duration  of,  in  general,  §  2449. 

Fictitious     certificate,     signing     and     acknowledging, 
§   2468. 

Fictitious  names,  certified  copies  of  register  and  proof 
of  publication  of,  §  2471. 

Fictitious  name,  under,  county  clerk  to  keep  register 
of,  §  2470. 

Fictitious  name,  upder,  filing  and  publishing  certificate, 
§§  2466,  2468. 

Fictitious  name,  under,  effect  of  not  filing  and  publish- 
ing certificate,  §  2468. 

Fictitious  name,  under,  foreign,  §  2467. 

Fictitious  name,  under,  new  certificate  on  change  of 
partner,  §  2469. 

Fictitious  name,  under,  register  of,  as  evidence,  §  2471. 

Fiduciary,  partners'  relations  are,  §§  2410,  2411. 

Foreign,  under  fictitious  name,  §  2467. 

Formation,  consent  necessary  to,  §  2397. 
Civ.  Code—    41 


862  PARTNERSHIP. 

General,  defined,  §  2424. 

General,  what  partnerships  are,  §  2424. 

Good  faith,  partners  must  exercise  towards  each  other, 

§  2411. 
Good-will:    See  Good-will. 

Indemnification  of  partner  for  losses  and  risks,  §  2412. 
Insurance  by  partner,  form  of  policy,  §  2590. 
Insurance,  not  avoided  by  transfer  between  partners, 

§  2557. 
Judgment,  partner  may  not  confess,  §  2430. 
Liability  of  one  held  out  as  partner,  §  2444. 
Lien  of  partner  on  shares  of  co-partners  for  payment 

of  debts,  etc.,  §  2405. 
Liquidation  of,  power  of  partners  in,  §  2461. 
Liquidation  of,  what  partner  may  and  may  not  do  in, 

§  2462. 
Liquidation  of,  who  may  act  in,  §  2459. 
Liquidation  of,  who  may  not  act  in,  §  2460. 
Losses,  partner's  share  in,  §  2403. 
Losses,  when  division  of  implied,  §  2404. 
Majority  of  partners  govern,  §§  2428,  2520. 
Mining,   g§   2511-2520.     See  Mining  Partnership. 
Negotiable  instruments,  power  of  liquidating  partner 

as  to,  §  2462. 
New    obligation,    liquidating    partner    cannot    create, 

§  2462. 
New    partner,    not   admitted    without   consent   of   all, 

§  2397. 
Ostensible  partner,  liability  of,  §  2444. 
Partner's  acts  in  bad  faith,  whether  binding,  §  2431. 
Partners  are  trustees  for  each  other,  §  2410. 
Partners,  change  of  in  firm  under  fictitious  name,  cer- 
tificate,  §  2469. 
Partners,  good  faith  to  be  observed  between,  §  2411. 
Partner's  liability  for  copartner,   §  2443   . 
Partner's  liability  to  third  persons,  §  2442. 
Partner  may  engage  in  separate  business,  when,  §  2437. 
Partner  may  not  engage  in  what  business,  §  2436. 
Partner,   no  one  liable   as,   unless   held   out  as   such, 

§  2445. 
Partner,  whether  may  dispose  of  whole  property,  §  2430. 


PARTNERSHIP — PASSENGER    CARRIERS.  963 

Partnership   interest   in   property    defined,    §  684. 

Profits  of  partner  belong  to  firm,  §  2435. 

Plofits,  partner's  share  in,  §  2403. 

Property   acquired   with   firm   funds,   presumed   to  be 

partnership,  §  2406. 
Property  of,  consists  in  what,  §  2401. 
Property  of,  partner's  interest  in,  §§  2402,  2403. 
Property,  partner  may  require  application  of,  to  debts, 

§  2405. 
Property,    whether    partner    may    dispose    of    whole, 

§  2430. 
Reimbursement  of  partner,  §  2412. 
Renunciation  by  partner,   effect  of  on  future  profits, 

§  2418. 
Renunciation  of,  effect  of,  §  2417. 
Renunciation    of    future    profits    exonerates    partner, 

§  2417. 
Restraint  of  trade,  contracts  in  partnership  agreement, 

§  1675. 
Separate  business,  partner  may  engage  in,  when,  §  2437. 
Ship,  joint  use  of,  does  not  create,  §  2396. 
Shipowners,  whether  partners,  §  2396. 
Special   partnership,   §§   2477-2510.     See   Special   Part- 
nership. 
Trustees,  partner  are  for  each  other,  §  2410. 
PARTY-WALL,  right  to  use  wall  as,  §  801. 

PASSENGER    CARRIERS.     Baggage,    bicycle    as,    §  2181. 
Baggage    carried    and    delivered    immediately,    §  2183. 
Baggage,  checking,  §  2183. 
Baggage,  consists  of  what,  §  2181. 
Baggage,   liability   for,    §  2182. 
Baggage,  lien  of  carrier  on,  §  2191. 
Baggage,  obligation  to  carry,  §  2180. 
Baggage,    obligation  to  carry  on  stage,  §  2180. 
Baggage,  railway,  checks  to  be  aflixed  to,  §  479. 
Baggage,  refusal  of  check,  liability  for,  §  479. 
Baggage,   refusal  to  deliver,   damages,   §  479. 
Baggage  to  be  carried  on  same  train  with  passenger, 

§  2183. 
Baggage  unchecked,  owner's  risk,  §  2183. 
Deviation,  carriage  to  be  without  unreasonable,  §  2104. 


S64  PASSENGER    CARRIERS. 

Duty  of  railroad  to  accommodate  and  transport,  §  481. 

Duty  of  carrier  of  person,  in  general,  §  2100. 

Ejection  of  passenger,  §§  2188,  2190. 

Ejection  of  passenger,  fare  after,  §  2190. 

Ejection  of  passenger,  how  and  where  made,  §  2188. 

Failure  to  start  on  schedule  time,  penalty,  §  2170. 

Fare,  additional,  when  passenger  without  ticket,  §  2189. 

Fare  after  ejection,   §  2190. 

Fare,  ejection  for  refusal  to  pay,  §   2188. 

Fare,  refusing  to  pay,  §  487. 

Fares,  payable  when,  §  2187. 

Freight  and  construction  trains,  care  required,  §  483. 

Gratuitous,  care  required  of,  §  2096.  - 

Inside  room,  §  483. 

Limitations  on  liability,   §§  2174-2176. 

Limitation  on  liability,  assent  to  on  accepting  ticket, 

§  2174. 
Not  liable  for  injury  to  passenger  violating  rules,  §  484. 
Passengers  on  baggage,  wood,  gravel  or  freight  car, 

duties  towards,  §  483. 
Passengers,  damages  for  not  receiving,  §  3315. 
Passengers,  damages  for  refusal  to  carry,  §  482. 
Passengers,  duty  to,  in  general,  §§  2100-2104. 
Passengers,  ejection  of,  §§  2188,  2190. 
Passengers,  safe  and  fit  vehicles  for  to  be  provided, 

§  2101. 
Passengers,   seats  for,    §   2185. 
Passengers,   shipmaster  may  engage,   §   2376. 
Passengers,  treatment  of,  §  2103. 
Passengers,  vehicles  not  to  be  overcrowded,   §§  2102, 

2185. 
Passenger  who  has  not  paid  fare  before  entering  train, 

§  2189. 
Rules,  injuries  to  while  violating,  §  484. 
Rules  and  regulations,   §§   484,   2186. 
Schedule  of  times  for  starting  to  be  published,  §  2170. 
Seats  for  passengers,  §  2185. 
Ship,  on,  master's  power  over,  §  2038. 
Speed,  carriage  to  be  at  reasonable  rate  of,  §  2104. 
Speed,  rate  of,  delays  and  deviations,  §  2104. 
Stage,  obligation  to  carry  baggage  on,  §  2180. 
Vehicles  not  to  be  overcrowded,  §§  2102,  2185. 


PASSENGER    CARRIERS— PENAL    LAW.  965 

Vehicles,  obligation  to  provide,  §  2184. 

Vehicles,  sufficient  number  of  to  be  provided,  §  2184. 

Vehicles  to  be  fit  and  safe,  §  2102. 

Tickets,  conditions  in,  limiting  liability,  §  2176. 

Tickets,  how  issued,  §  490. 

Tickets,  refusal  to  issue,  penalty,  §  490. 

Tickets,  rights  of  holder,  §  490. 

Tickets  to  be  good  six  months,  §  490. 
PASTURE,  right  to,  §§  801,  802. 

Lien  for,  §  3051. 
PATENT,  recorded  without  acknowledgment,  §  1160. 
PAWN:     See  Pledge. 
PAWNBROKER:     See  Pledge. 
PAYMENT,  agent,  to,  §  2335. 

Application  of,  duty  to  see  to  on  payment  to  trustee, 
'  §  2244. 

Application  of,  to  obligations,  §  1479. 

Defined,  §  1478. 

Effect  of  offer  of,  on  accessory  of  obligation,  §  1504. 

Honor,  for,  how  made,  §  3205. 

Honor,  for,  made  when,  §  3203. 

Indemnity,  when  necessary  to  claim,  §  2778. 

Liquidated  debt,  of  less  than,  §  1524. 

Negotiable  instrument,  of,  made  to  whom,  §§  3089,  3164. 

Negotiable    instrument    payable    to    fictitious    person, 
§  3103. 

Obligation,  kow  extinguished  by  offer  of,  §  1500. 

Payee's  option  as  to  manner  of,  §  3090. 

Surrender  of  instrument  as  condition  of,  §  3137. 

Tender  and  deposit  extinguish  obligation,  §  1500. 

Tender,  extinction  of  obligation  by,  §  1500. 

Tender  stops  interest,  §  1504. 

Time  of  performance  of  contract  of,  §  1657. 
See   Sales. 
PENAL  DAMAGES,  §§  3344-3348. 

Failure  to  quit  after  notice,  §  3344. 

Injuries  inflicted  in  a  duel,  §§  3347,  3348. 

Injuries  to  trees,  §  3346. 

Tenant  willfully  holding  over,   §  3345. 
PENAL  LAW,  specific  relief  not  granted  to  enforce,  §  3369. 


866         PENALTY — PERPETUAL  INTEREST. 

PENALTY,  carrier  liable  to,  for  not  starting  on  time,  §  2170. 
Contract  with,  may  be  specifically  enforced,  §  3389. 

Damages,  penal,   §§  3344-3348. 

Excessive  charges  by  street  railway,  §  501. 

Failure  of  bridge,  chute,  etc.,  corporation  to  make  re- 
port, §  530. 

Failure  of  railroad  to  ring  bell  or  sound  whistle,  §  486. 

Injunction  to  enforce,  §  3369. 

Liquidated  damages,  or,  §§  1670,  1671, 

Not  to   be   enforced   by   specific  or  preventive  relief, 
§  3369. 

Overcharge  by  railroad,  §  489. 

Overcharge  by  street  railway,  for,  §§  501,  504. 

Penal  damages,  §§  3344-3348. 

Railroad  rates,  penalty  for  raising  without  consent  of 
authorities,  §  494. 

Railroad  rates,  penalty  for  raising,  duty  and  powers  of 
attorney-general,  §  494. 

Raising  rates  after  sale  of  railroad  to  another  corpora- 
tion, §  494. 

Recovery  by  purchaser  of  franchise  under  execution, 
§  390. 

Refusal  to  furnish  gas,  penalty  for,  §  629. 

Specific  enforcement  of  contract  with,  §  3389. 

Specific  relief  not  granted  to  enforce,  §  3369. 

Street-car  ticket,  for  not  furnishing,  §  505. 

Surety  not  liable  beyond,  §  2836. 

Telegraph,  for  injuring,  §  538. 

Toll,  collecting  unlawful  or  excessive,  §  518. 

Toll,  penalty  for  avoiding,   §  519. 

Tolls,  for  charging  unauthorized,  §  514. 

Treble  rent,  §§  3344,  3345. 

Trespassing  on  property  of  wagon  road  corporation, 
§  520. 
PERILS  OF  SEA,   §§  2197,  2199. 

PERISHABLE  deposit,  sale  of,  §  1837. 

Sale  for  freightage,  §  2204. 
PERJURY,  land  and  building  corporation  may  commit,  in 

false  report,  §  644. 
PERPETUAL  INTEREST  defined,  §  691. 


PERPETUITIES — PERSONAL    PROPERTY.  967 

PERPETUITIES,   §§  715,  716. 

Limitation  of  power  of  suspension  in  estates  for  years, 
§  770. 
PERSON   defined,   §  14. 

Includes  corporation,  §  14. 

Third  person:     See  Third  Persons. 
PERSONAL  PROPERTY:     See  Property. 

Accession  to,  §§  1025-1033. 

Acquisition,  modes  of,  §  1000. 

Action,  thing  in,  §§  953,  954. 

Chattel  interests  are  what,  §  765. 

Chose  in  action  defined,  §  953. 

Chose,  in  action,  transfer  and  survivorship,  S  954. 

Conflict  of  laws,  §  946. 

Confusion  of  goods,  §§  1025-1033. 

Consist  of  what,  §  663. 

Definition,  §  663. 

Estates  at  will  are  chattel  interests,  i  765. 

Estates  in,   §   702. 

Good-will,   §  655. 

Good-will  defined,   §  992. 

Good-will,  transferable,   §  993. 

Includes  what,  §  14. 

Interests  in,  generally,  §  702. 

Interests  in:     See  Property. 

Inventions,  property  in,  §§  980-985. 

Law  governing,  §  946. 

Letters,  property  in,  §§  980-985. 

Minor's  contract,  respecting  that  not  In  his  possession, 
§  33. 

Ownership  may  exist  in  what  property,  §  655. 

Private  writings,  to  whom  belong,  §  985. 

Products  of  the  mind,  §§  980-985. 

Recovery  of,   §§  3379,  3380. 

Thing  in  action,  §§  953,  954. 

Title  deeds,  §  994. 

Trademark,  §§  655,  991. 

Transfer  of:     See  Sales;  Transfers. 

What  is,   §   663. 

What  law  governs,  §  946. 

Writings,  property  in,  §§  980-985. 

See  Good-will;   Property. 


968  PERSONAL    RIGHTS— PLEDGE. 

PERSONAL  RIGHTS,  enumeration  of,  §  43. 
PEW  as  a  servitude,  §§  801,  802. 
PHRASE,  how  construed,  §  13. 
PIER  corporation,  §§  528-531. 

Statutes    governing    pier    corporations    govern    where 
owned  by  individual,  §  531. 

See  Bridge,  Ferry,  Wharf,  Chute  and  Pier  Corporations. 
PILOT:      See  Shipping. 
PIONEER  SOCIETY,  limitation  on  amount  of  land  held  by, 

§  596. 
PLEDGE,  apparent  owner,  by,  §  2991. 

Contract  deemed  a,  when,  §  2987. 

Debtor's  misrepresentation  of  value,  effect  of,  §  2999. 

Defined,  §§  2986,  2987. 

Delivery  essential,  §  2988. 

Duties  and  liabilities  of  pledgee  for  reward,  §  2997. 

Factor  may  not,  §  2368. 

Foreclosure  of  right  of  redemption,  §  3011. 

Further  pledge,  demanding,  §  2999. 

Gratuitous  pledge  holder  can  exonerate  himself,  how, 
§  2995. 

Gratuitous  pledge  holder's  liabilities,  §  2998. 

Increase  of  thing  covered  by,  §  2989. 

Lien  dependent  on  possession,  §  2988. 

Lienor  may  pledge,  §  2990. 

Negotiable  instrument  may  contain,  §  3092. 

Pledge  holder  cannot  exonerate  himself,  §  2995. 

Pledge  holder  is  who,  §  2993. 

Pledge  holder  must  enforce  pledgee's  rights,  §§  2996, 
2997. 

Pledge  holder's  obligations,  §  2995. 

Pledge  holder,  parties  may  agree  upon,  §  2993. 

Pledge   lender   is   who,    §    2992. 

Pledge  lender's  right  to  withdraw  property,  §  2994. 

Property  pledged   as   security   for   another,   rights   of 
owner,  §§  2992,  2994. 

Property  pledged  as  security  for  obligation  of  another, 
§  2992. 

Real  owner  cannot  defeat  pledge  by  apparent  owner, 
§  299L 


PLEDGE — POSSESSION.  '869 

Sale  before  pledgee's  claim  is  due,  §  3009. 

Sale,   demand  a  prerequisite,   §   3001. 

Sale,  judicial,  foreclosure  of  right  of  redemption  by, 
§  3011. 

Sale,  judicial,  pledgee  may  be  authorized  to  purchase, 
§  3011. 

Sale,  must  be  by  auction,  §  3005. 

Sale,  notice  of,  to  pledgor,  §  3002. 

Sale  of  securities,  manner  of,   §  3005. 

Sale  on  demand  of  pledgor,  §  3007. 

Sale,  pledgee  may  retain  what,  §  3009. 

Sale,  pledgee,  or  pledge  holder,  may  purchase,  §  3010. 

Sale,  surplus  to  be  paid  pledgor,  §  3008. 

Sale,  waiver  of  demand  of  performance,   §  3004. 

Sale,  waiver  of  notice,   §  3003. 

Sale,  when  pledgee  may  have,  §  3000. 

Securities,  collection  and  sale  of,  §  3006. 

Transfer   of   personalty   as    security,    deemed    to   be, 
§  2924. 
PLUMAS  COUNTY,  tolls  in,  §  514. 
PLURAL  includes  singular,  §  14. 

Included  in  singular,  §  14. 
POLICE  JUDGE,  marriage,  may  perform,  §  70. 
POSSESSION,  adverse,  owner  of  property  in,  may  transfer, 
§  1047. 

Banker's  lien  dependent  on,  §  3054. 

Bottomry  independent  of,  §  3027. 

Covenant  of,  implied  in  hiring,  §§  1927,  1955. 

Damages  for  unlawful,  §  3334. 

Devise,  possession  of,  §  1363. 

Factor's  lien  dependent  on,  §  3053. 

Gift,   §  1147. 

Lease,  when  renewed  by  continued,  §  1945. 

Legacies,  of,  how  obtained,  §  1363. 

Lien  for  services  dependent  on,  §  3051. 

Lien  of  purchaser  Independent  of,  §  3050. 

Lien  of  seller  dependent  on,  §  3049. 

Mortgagee  not  entitled  to,  §  2927. 

Mortgagee,    when    may    take,    of   personal    property, 
§  2966. 

Occupancy,  title  may  be  acquired  by,  §  1006. 


970  POSSESSION— POWERS. 

Officer's  lien  dependent  on,  §  3057. 

One  fraudulently  dispossessing  himself  may  be  treated 
as  in  possession,  §  3518. 

Pledge,  change  of,  necessary  in,  §  2988. 

Seaman's  lien  independent  of,  §  3056. 

Shipmaster's  lien  independent  of,  §  3055. 

Summary  proceedings  for,  §  792. 

Transferred  for  security  deemed  pledged,  §  2987. 

Vendor's  lien  independent  of,  §  3046. 
POSSIBLE,  object  of  contract  must  be,  §  1596. 

What  is  deemed,  §  1597. 
POSSIBILITY  cannot  be  transferred,  §  1045. 

Mere  possibility  is  not  an  interest,  §  700. 
POSTHUMOUS  CHILDREN,  birth  of,  defeats  certain  fu- 
ture interests,  §  739. 

Deemed  living  at  death  of  parent,  §  1403. 

Property  rights  of,  §§  698,  739. 

Succession  by,  §§  698,  1339. 
POULTRY,    dogs   killing   or   injuring,   liability   of   owner, 

§   3341. 
POWER  OF  APPOINTMENT,  by  married  woman,  acknowl- 
edged how,  §  1094. 

Effect  of  on  future  interest,  §  781. 

Instruments   executed   under,    §    1095. 
POWER  OF  ATTORNEY,  gratuitous  employee,  to,  duties 
under,  §  1977. 

Instrument  under,  how  executed,  §  1095. 

Mortgage,  to  execute,  §  2933. 

Revocation  of,   §   1216. 

To  convey  realty,  §§  1094,  1095. 
POWERS.    Execution  of  powers  vested  in  several,  §  860. 

Execution  of  power  to  several,  where  some  dead,  §  860. 

Minor  cannot  give,  §  33. 

Of  revocation  of  trust,  may  be  reserved  by  trustor, 
§  2280. 

Of  sale  may  be  conferred  by  mortgage,  §  2932. 

Person  of  unsound  mind  cannot  give,  §  40. 

Revocation,  power  of,  when  deemed  executed,  §§  1229, 
1230. 

Sale,  power  of,  in  mortgage,  §  2932. 


POWERS — PRESUMPTION.  971 

To  devise,  how  executed  by  terms  of  will,  §  1330. 

To  executor,  to  appoint  executor,  void,   §  1372. 

To  sell  in  mortgage  a  part  of  security  and  passes  on 

assignment,  §  858. 
To  sell  in  mortgage  deemed  part  of  security,  §  858. 
To  sell  passes  to  assignee,  §  858. 
PREFERENCE,   assignment  for   creditors,    §§   3451,  3452, 
3457. 
Carriers  not  to  give,  §   2170. 

Carriers  to  give  to  state  and  United  States,  §  2171. 
Creditors,   of,  right  of.   §   3432. 
Employee,    duty    of    to    give    to  employer's  business, 

§  1988. 
Legacies  to  kindred,  preference  of,  §  1361. 
Messages,    §§  2207,    2208. 

Special  partnership,  preference  by,  void,  §  2496. 
PRESCRIPTION,  islands,   §  1016. 

Title  by,  §  1007. 
PRESENT  includes  future,   §   14. 
PRESENT  INTERESTS  defined,  §  689. 
PRESIDING  ELDER,  religious  corporations,  8  602. 
PRESUMPTION.      Abandonment,     of    relinquishment    of 
child  from,  §  211. 
Adequacy  of  damage  as  relief  for  breach  of  contract 

to  transfer,  §  3387. 
Bill  of  exchange  is  presumed  to  be  dishonored  when, 

§  3133. 
Boundary  upon  road  or  street,  presumption  in  case  of, 

§  831. 
Certificate  of  shipmaster  in  favor  of  sailor,  §  2059. 
Child,  relinquishment  of  control,  §  211. 
Children  born  after  marriage,  presumption  as  to  legiti- 
macy, §  194. 
Children  born  in  wedlock  presumed  legitimate,  §  193. 
Collision,  breach  of  rules,  §  972. 
Community  or  separate  property,  §  164. 
Compensation  of  employee,  presumption  as  to,  §§  1980, 
2011. 
'  Consideration  for  negotiable  instrument,  §  3104. 
Consideration  in  written  instrument,  §  1614. 


972  PRESUMPTION. 

Consignor  presumed  liable  for  freightage,  §  2137. 
Contract,  uncertainty  in,   §§  1649,  1654, 
Conversion,    damages,    §    3336. 
Creditor's  retention  of  part  performance  not  voluntary, 

§  1477. 
Damage,  adequacy  of  relief,  §  3387. 
Damages  by  conversion,  §§  3336,  3337. 
Date  of  delivery,  as  to,  §  1055. 
Depositary  in  fault,   §  1838. 

Divorce,  lapse  of  time,  presumptions  from,  §§  125,  126. 
Divorce,  residence,  §  129. 

Domicile,  presumption  as  to,  in  divorce,  §  129. 
Fee  simple  passes,   §  1105. 
Fraud,  presumption  of  on  want  of  change  of  possession, 

§  3440. 
Gift  presumed  to  be  in  view  of  death  when,  §  1150. 
Grant  presumed  to  include  whatever  essential  to  use, 

§   3522. 
Grant,  time  of  delivery,  §  1055. 
Hiring  for  indefinite  term,  presumption  as  to  time  of, 

§§   1943,   1944. 
Hiring  of  real  property  renewed,  §  1945. 
Hiring,  term  of,  presumption  as  to,  §§  2010,  2011. 
Hiring,  renewal  of,   §  2012. 

Husband  and  wife,  when  property  conveyed  to,  §  164. 
Husband  receiving  stepchildren  into  family,  on,  §  209. 
Insurance,  representation  refers  to  time  of  completing 

contract,  §  2577. 
Insured,  has  knowledge  of  prior  loss,  §  2671. 
Intent  to  extinguish  contract  when  canceled,  §  1699. 
Joint    and    several    promise,    when    presumed    to    be, 

§§  1659,  1660. 
Joint  obligation,  §  1431. 
Lease,  renewal  of,  §§  1945,  1946. 
Lease,  term  of,  §  1943. 

Legal  capacity,  presumption  of  restoration  to  from  cer- 
tificate, §  40. 
Legitimacy,  §§  193,  195. 
Loan  presumed  to  be  on,  §  1914. 
Loss  of  ship  from  continued  absence,  §  2705. 
Loss   or   injury   to   thing   deposited,   presumption   on, 

§  1838. 


PRESUMPTION— PRICE.  973 

Managing  owner  of  ship,  no  compensation,  §  2072. 
Marine  insurance,  presumption  of  knowledge  of  loss, 

§  2671. 
Obligation  joint,  §  1431. 

Origin  of  uncertainty  in  contract,  §§  1649,  1654. 
Partnership  property,  §  2406. 
Reformation   of    contract,    presumption   as    to    intent, 

§  3400. 
Resulting  trust,   when   presumed,    §  853. 
Sale  without  delivery,  §  3440. 
Separate  property,  §  164. 
Servant,  term  of  hiring,  §§  2010,  2011. 
Ship,  actual  loss  of,  §  2706. 
Ship,  managing  owner,  compensation,  §  2072. 
Shipmaster's  certificate,  §  2059. 
Term  for  which  real  property  hired,  §  1943. 
Transfers,  without  possession,  fraudulent,  §  3440. 
Trustee,  presumption  against,  §  2235. 
Uncertainty   in   contract  presumed   caused   by   whom, 

§   1654. 
"Undue  influence  of  trustee,  §  2235. 
Value  of  instrument  in  writing,  presumption  as  to  value 

of,   §  3356. 
Where  property  conveyed  to  wife  and  a  third  person, 

§  164. 
"Wife,  property  conveyed  to,  §  164. 
Wife,  separate  property,  §  164. 
PRETERMITTED  CHILDREN,  succession  by,  §  1307. 
PREVENTION  of  performance,  §§  1511-1514. 

Of  reduction  of  contract  to  writing,  §  1623. 
PREVENTIVE  RELIEF  only  granted  in  cases  specified  in 

code,  §  3274. 
Only  in  special  cases,  §§  3274,  3366  . 
How  given,   §   3368. 

By  injunction,  §§  3420-3423.     See  Injunction. 
PRICE  in  sales,  §  1721. 

Of  personal  property,  lien,  §  3049. 

Of  real  property,  lien,  §  3046. 

Of  real  property,  priority  of  mortgage  for,  §  2898. 

On  failure  to  pay,  seller  may  resell  or  rescind,  §  1749. 

When  agent  may  receive,  §§  2325,  2326. 

When  paid,  §  1784. 


974  PRIEST— PROPERTY. 

PRIEST,  religious  corporations,  §  602. 

PRINCIPAL,  attorney  in  fact  to  subscribe  name  of,  §  1095. 

Consent   necessary   to   release    factor    from   liability, 
§   2030. 

Factor  must  follow  directions  of,  §  2027. 

Incident  passes  by  transfer,  §§  1084,  3540. 

In  guaranty:     See  Guaranty. 
PRINCIPAL  AND  AGENT:      See  Agency. 
PRINCIPAL  AND  SURETY:     See  Suretyship. 
PRINTING,  included  in  word  "writing,"  §  14. 
PRIORITY,  bottomry  or  respondentia  liens,  §§  2897,  3029. 

Different  employments,  §  1988. 

Liens  according  to  date,  §  2897. 

Lien  upon  single  fund  over  lien  upon  several,  §  2899. 

Marshaling  of  assets,  §  2899. 

Mortgage  for  price  of  land  has,  §  2898. 

Of  record  priority  of  right,  §  1214. 

Surety's  property  over  principal's,  §  2850. 
PRIVILEGED   COMMUNICATION:      See  Libel;    Slander. 

Enumeration  of,  §  47. 
PRODUCTS  OF  THE  MIND,  property  in,  §§  980-985. 
PROFITS  by  partner  belong  to  firm,  when,  §  2435. 

Insurable  interest  in,  §  2664. 

Loss  of,  under  insurance,  when  presumed,  §  2740. 

Measure  of  indemnity   for  loss   of,   under  insurance, 
§  2738. 

Renunciation  of  future  partnership  exonerates  partner, 
§   2417. 

Special  partner  may  draw  share  of,  §  2494. 
PROMISE  OF  MARRIAGE,  damages  for  breach  of,  §  3319. 

When  neither  bound,  §  62. 
PROMISSORY  NOTE:     See  Negotiable  Instruments. 
PROPERTY,  absolute  ownership,  §  679. 

Accession  to:     See  Accession. 

Accumulations,   §§  722-733. 

Acquisition,  modes  of,  §  1000. 

Alien  may  take,  hold,  and  dispose  of,  §  671. 

Alienation,  future  interest  which  suspends  power  ot, 
void,  §  716. 


PROPERTY.  971 

Alienation  may  be  suspended  how  long,  §  715. 
Alienation,  restraint  on,  void,  §  715. 
Alternative  future  interests,  §  696. 
Appurtenances  are  what,  §  662. 
Chattel  interests  are  what,  §  765. 
Classes  of,  §  657. 
Common,  interests  in,  §  682. 
Common,  interest  in,  defined,  §  685. 
Common,  what  interests  are  in,  §  686. 
Community,  §§  682,  686. 
Community,  defined,  §§  164,  687. 
Community,  resorting  to,  for  alimony,  §  141. 
Community:      See  Divorce;    Husband  and   Wife. 
Conditions  are  precedent  and  subsequent,  §  708. 
Conditions  precedent,  void  when,  §  709. 

See  Conditions. 
Confusion  of  goods,   §§  1025-1033. 
Contingent  interest  defined,  §  695. 
Corporation  may  acquire,  §  360. 
Defined,  §§  14,  654. 

Divorce,  disposition  of,  on,  §§  146-148. 
Enjoyment,  fixing  time  of,  §  707. 
Fee,  owner  in,  surface  and  everything  above  and  be- 
low belongs  to,  §  829. 
Fixtures,  §  1013. 
Fixtures:      See  Fixtures. 
Found  property,  claimant  to  prove,  §  1866. 
Future  estates,  qualities  of,  §  699. 
Future  interests  are  vested  or  contingent,  §  693. 
Future  interests   defeated  how,   §§  739,   740. 
Future  interest  defined,  §  690. 
Future  interests  in  the  alternative,  §  696. 
Future  interest  not  defeated  by  what,  §§  741,  742. 
Future  interests,  two  or  more  in  alternative,  §  696. 
Future  interest,  what  not  void,   §  697. 
Future  interests,  what  only  recognized,  §  703. 
Good-will   defined,    §  992. 
Good-will,   in,    §  655. 
Good-will  transferable,    §  993. 
Husband  and  wife,  §§  143,  158,  161,  177. 
Husband's  debts,  wife's  not  liable  for^  §  171. 
Husband's  support,  when  liable  for,  §  176. 


876  PROPERTY. 

Husband's,  when  liable  for  alimony,  §  141. 

Husband's,  when  not  liable  for  wife's  debts,  S  170. 

Includes  real  and  personal  property,  §  14. 

Income,  accumulation  of,  §§  722-733. 

Income  defined,   §   748. 

Increase  of,  ownership  of,   §  732. 

Interest,  time  of  creating,  §  749. 

Interests  as  to  time  of  enjoyment,  §  688. 

Islands,  ownership  of,  §§  1016-1018. 

Inventions,  rights  in,   §§   980-985. 

Joint  Interest  defined,   §   682. 

Joint  interests,  §  682. 

Letters,  to  whom  belong,  §  985. 

Limited  interest  defined,  §  692. 

Literary  property,  §§  980-985.     See  Literary  Property. 

May  exist  in  what  things,  §  655. 

Mere  possibility  is  not  an  interest,  §  700. 

Occupancy,  title  by,  §  1006. 

Owner,  all  property  has,  §  669. 

Ownership,  absolute  or  qualified,  §  678. 

Ownership,  absolute  when,  §  679. 

Ownership  by  several,  classes  of,  §  682. 

Ownership  defined,   §   654. 

Ownership  is  qualified  when,   §  680. 

Ownership  of  interests,  as  to  time,  §  688. 

Ownership,  several,  defined,  §  681. 

Ownership,  termination  of,   §§  739-742. 

Ownership,  time  of  creation,  §  749. 

Parent's  support,  when  liable  for,  §  201. 

Partnership  interest  defined,  §  684. 

Perpetual  interest  defined,  §  691. 

Perpetual  interest,  duration  of,  §  691. 

Personalty:     See  Personal  Property. 

Posthumous  children,  §§  698,  739. 

Prescription,  §  1007. 

Present  interest  defined,  §  689. 

Private  writings,  to  whom  belong,  §  985. 

Products  of  the  mind,  §§  980-985. 

Property,  modes  in  which  acquired,  §  1000. 

Qualified  or  absolute,  ownership  is,   §  678. 

Qualified  ownership,  §  680. 

Realty:     See  Real  Property. 


PROPERTY — PUBLIC.  977 

Restoration  of  thing  -wrongfully  acquired,  §§  1712,  1713. 

Restraint  upon  alienation  void,   §  711. 

Right  arising  out  of  obligation  is,   §   1458. 

Separate,  of  spouses,  §§  162,  163. 

Several  ownership,  §§  681,  682. 

Several  ownership,  classes  of,   §  682. 

Several  ownership  defined,  §  681. 

State  is  owner  of  property  which  has  no  other  owner, 

§  670. 
State  may  hold,  as  private  proprietor,  §  669. 
State  owns  what,  §  670. 
Termination  of  ownership,   §§  739-742. 
Termination  of  tenancy  at  will,  notice,  §  789,  790. 
Time  of  enjoyment,  interests  as  to  classified,  §  688. 
Time  of  creating  ownership,  §  749. 
Title  deeds,   §   994. 
Trademark,  in,  §§  655,  991. 
Transfer  of:      See  Transfer. 
Vested  future  interest  defined,   §   694.  , 
What  may  exist  in,  §  655. 
Who  may  own,  §  671. 
Wife  may  dispose  of,  §  162. 
Writings,  property  in,  §§  980-985. 

See  Personal  Property;   Real  Property. 
PROPOSAL.     Acceptance  must  be  unqualified,   §   1585. 
Qualified  acceptance,   §   1585. 
Revocation,  §§  1586,  1587. 
To  contract,  acceptance,  §§  1582,  1585. 
What  is  deemed  acceptance,  §  1584. 

PROTECTION  against  restraint  and  injury,  §  43. 
To  personal  relations,  §  49. 
What  force  used  in  seeking,  §  50. 

PROTECTIVE   ASSOCIATIONS,   act  providing  for  forma 
tion  of,  p.  689. 
Act  validating  acknowledgments  by,  p.  665, 
PROTEST  of  bills  of  exchange,  §§  3225-3232. 
PROVISIONS,  implied  warranty  on  sale  of,  §  1775. 
PROXY,  voting  by,  at  corporate  meetings,  §  312. 

PUBLIC     contracts     interpreted     against     private     party, 
§§  1069,  1654. 


878  PUBLIC— QUO    WARRANTO. 

Deceit  upon,  §  1711. 

Grant  by,  interpreted  in  favor  of  grantor,  §  1069. 

Grant  interpreted  against  grantee,   §   1069. 

Nuisance:      See  Nuisance. 
PUBLICATION,  assessment,  notice  of,  §  336. 

Delinquent  assessments,  §  339. 

Libel  by  unprivileged,   §  45. 

Partners,  of  names  of,  §  2466. 

Partnership,  certificate  of  special,  §  2483. 

Partnership,  change  of  name  of,  §  2469. 

Partnership,  notice  of  dissolution,  §  2453. 

Privileged,   defined^   §   47. 

Products  of  mind,  §  983. 

Special  partnership,  afiidavit  of,  §  2484. 

Special  partnership,  notice  of  dissolution  of,  §  2509. 
PUBLIC  MEETINGS,  reports  of,  are  privileged  commuxU- 

cations,  §§  47,  48. 
PUBLIC  POLICY,  contracts  against,  §§  1667,  1668. 
PUFFING  AT  AUCTION,  §  1797. 
PURCHASE   MONEY,  lien  for,  §  3046. 

Priority  of  mortgage  for,  §  2898. 

QUALITY,  damages  for  breach  of  warranty  of,  §  3313. 

Domestic  provisions,  §  1775. 

General,  §  1773. 

Goods  inaccessible  to  buyer,  §  1771. 

Warranty  by  manufacturer,  §§  1768,  1770. 

Warranty  of  goods  sold  by  sample,  §  1766. 

Warranty  on  executory  sale,  §  1767. 
QUANTITY,  implied  warranty  as  to,  §  1773. 
QUESTIONS  OF  LAW  AND  FACT.     Fraud,  a  question  of 

fact,  §  3442. 
QUIET  ENJOYMENT,  covenants  for,  §  1463. 

Covenant  runs  with  land,   §   1463. 

Damages  for  breach  of  covenant  of,  §  3304. 

Executory  contract  of  sale,  §  1733. 

Implied  in  hiring  of  personalty,  §§  1927,  1955. 
QUORUM.  Board  of  directors,  quorum  of,  §  308. 
QUO  WARRANTO,   §  358. 


RAILROAD    CORPORATIONS.  979 

RAILROAD  CORPORATIONS:  See  Carriers;  Street 
Railway  Corporations. 

AflBdavit  to  subscription  of  stock  and  payment  of  ten 
per  cent,  §  295. 

Amount  of  capital  stock  to  be  subscribed,  §  293. 

Animals,  injuries  to,  liability  for,  §  485. 

Animals,  injuries  to  or  by,  where  owner  paid  to  main- 
tain fence,  §  485. 

Annual  report  of,  to  state  what,  §  480. 

Annual  report  to  be  verified,  §  480. 

Articles  to  state  what  facts,  §  291. 

Assessment  of  stock,  §  455. 

Assessments  on  stock,  limitation  of,  §  322. 

Badge,   officers   to   wear,   §   488. 

Baggage:     See  Carriers. 

Baggage,  checks  to  be  affixed  to,  §  479. 

Baggage  or  freight  train,  passenger  on,  §  483. 

Bell,  penalty  for  failure  to  ring,  §  486. 

Bell,  sounding,  duty  and  liability  as  to,  §  486. 

Bonds,  may  issue,  §  456. 

Bonds  of,  interest,  §  456. 

Bonds  of,  limitation  of  amount,  §  456. 

Bonds,  power  of  holder  to  convert  into  stock,  §  457. 

Bonds,  sinking  fund  to  pay,  §  457. 

Borrow  money,  power  to,  §  456. 

Brakes  on  cars,  p.  753,  Stats. 

Buildings,  may  erect  necessary,  §  465. 

Capital  stock  to  be  fixed,  §  458. 

Certificate  of  payment  of  fixed  capital  stock,  §  459. 

Code  provisions  apply  to  all  companies,  §  493. 

Commissioners  of  transportation,  act  relating  to,  p.  766. 

Commissioners,  railroad,  act  organizing  and  defining 
powers  of  broad,  p.  766. 

Completion  of  road,  act  authorizing,  p.  763. 

Connect  roads,  power  to,  §  465. 

Consent  of  municipalities  to  use  of  streets  and  waters, 
§  470. 

Consolidation,  articles  of  and  of  incorporation,  §  473. 

Consolidation,  effect  of  on  prior  contracts,  §  473. 

Consolidation,  manner  of,  §  473. 

Consolidation  of,  §  473. 

Consolidation  of,  publication  of  notice,  and  filing  copy, 
§  473  . 


880  RAILROAD    CORPORATIONS. 

Construction  of  road,  forfeiture  of  franchise,  §  468. 

Construction  of  road,  time  to  begin,  §  468. 

Crossings  and  intersections,   §§   469,   472. 

Crossings,  condemning  land  for,  §  472. 

Crossings,  mode  of  malting,  §§  469,  472. 

Crossings,  other  land  for,  how  acquired,  §  472. 

Cross  roads,  power  to,  §  465. 

Debt,  power  of  holder  to  coKv'ert  into  stock,  §  457. 

Deed  of  trust  by,  §  456. 

Deed  of  trust  by,  trustee  in,  §  456. 

Directors,  election  of,  §  454. 

Electricity,  steam  road  permitted  to  use,  p.  772,  Stats. 

Elevation,  management  and  operation  of  road  above 

certain,  p.  765,   Stats. 
Fences,  duty  and  liability  respecting,  §  485. 
Fencing  track,  §  485. 
Fenders   on  cars,   p.   753,    Stats. 
Foreign,  doing  business  of  by  on  equal  terms,  p.  764, 

Stats. 
Forfeiture  for  want  of  operation,  p.  765,  Stats. 
Franchise,  forfeiture  of,  §  468. 
Franchise,  sale  of  to  another  corporation,   §   494. 
Franchise  and  property  of  roads  in  competition,  cannot 

purchase,   §§  465,  494. 
Franchise  and  property  of  roads  not  in  competition, 

may  purchase,  §§  465,  494. 
Franchise,  statute  limiting  time  within  which  may  be 

granted,  p.  773. 
Franchise,  statutes  relating  to  sale  of  and  governing 

conditions  of  sale,  pp.  753-762. 
Franchise,    statute     validating     ordinances     granting, 

p.  763. 
Freights,  power  to  regulate,  §  465. 
Gravel,  may  purchase,  §  465. 
Injuries  to  animals  on  track,  liability  for,  §  485. 
Line  of,  may  change,  §  467. 
Location  of  route,  power  to  change,  §  467. 
Mail  carriers  to  ride  free  on  street  cars,  p.  773,  Stats. 
Management  and  operation  of  railroads  above  certain 

elevations,  p.  765,  Stats. 
Map  and  profile  to  be  filed,  §  466. 
May  borrow  money,  §  456. 


RAILROAD    CORPORATIONS.  981 

May  carry  freight  and  persons,  §  465. 

May  lay  out  road,  how  wide,  §  465. 

May  purchase  land,  timber,  gravel,  etc.,  §  465. 

May  regulate  force  and  speed,   §   465. 

May  regulate  time  and  freights,  §  465. 

May  sell  property  and  franchise  to  another  corpora- 
tion, §  494. 

May  sell  to  another  corporation,  §  494. 

Mortgage  by,   §   456. 

Oflficers  to  wear  badge,  §  488. 

Officer  without  badge,  no  authority,   §   488. 

Operation  of,  act  compelling,  p.  765. 

Operation  of,  forfeiture  for  want  of,  p.  765,  Stats. 

Operation  of  railroads  above  certain  elevations,  p.  765, 
Stats. 

Passengers:     See  Passenger  Carriers. 

Powers,  enumeration  of,   §   465. 

Property,  refusal  to  carry  or  deliver,  §  482. 

Rails  to  be  used,  §  491. 

Rates  and  charges,   §   489. 

Rates  and  charges,  posting,  §  489. 

Rates  lower  to  meet  competition  not  to  be  raised  with- 
out consent,  §  494. 

Rates  not  to  be  raised  without  consent  of  authorities, 
§   494. 

Rates,  penalty  for  raising  without  consent,  power  and 
duty  of  attorney-general,   §   494. 

Rates,  raising  without  consent,  penalty  for,  §  494. 

Rates  and  charges,  penalty  for  overcharge,   §  489. 

Real  estate,  may  acquire,   §  465. 

Right  of  way  over  state  lands,  grant  of,  §§  474,  475. 

Right  of  way,  selection  of,  how  proved  and  certified, 
§  478. 

Sale  of  property  and  franchise  to  another  corporation, 
§  494. 

Sale  of  property  to  another  railroad,  raising  rates, 
penalty,  §  494. 

Sale  to  another  corporation,  effect  of,  §  494. 

Sale  to  another  corporation,  limitations  on,  §  494. 

Selection  of  land  or  right  of  way,  how  proved  and  cer* 
tifled,  §   478. 

Sinking  fund  to  pay  bonds,  §  457. 


982       RAILROAD    CORPORATIONS — RATE    OP    INTEREST. 

Speed,  may  regulate,  §  465. 

State   lands   granted   for,   not   to   embrace   town   lots, 
§  475. 

State  lands  granted  for,  revert  when,   §   477. 

State  lands  granted  for,  right  of  way,  §  474. 

Steam  whistle,  penalty  for  failure  to  sound,  §  486. 

Steam    whistle,    sounding    on    approaching    crossings, 
§  486. 

Stock  not  transferable  until  previous  calls  or  install- 
ments paid,  §  455. 

Stock,  right  to  convert  bonds  or  debts  into,  §  457. 

Stock,  transfer  before  twenty  per  cent  paid  and  cer- 
tificate issued,  §  455. 

Stocks,  bonds  and  securities  of  roads  in  competition, 
cannot  purchase,  §  465. 

Stocks,  bonds  and  securities  of  roads  not  in  competi- 
tion, right  to  purchase,  §  465. 

Streets  and  alleys,  consent  of  municipalities  to  use  of, 
§    470. 

Street:     See  Street  Railways. 

Subscription  to  stock,  amount  necessary  as  prerequi- 
site to  filing  articles,  §§  293,  294. 

Survey  road,  power  to,  §  465. 

Ten  per  cent  of  amount  subscribed  to  be  paid  in,  §  294. 

Tickets:     See  Passenger  Carriers. 

Timber,  may  purchase,  §  465. 

Time  for  running  trains,  §  481. 

Time  for  starting,  delay  in,  penalty  for,  §  2170. 

Time  for  starting,  schedule  establishing  and  publish- 
ing,   §    2170. 

Transfer  of  stock,  §  455. 

Use  of  streets  and  water  of  municipality,  consent  of, 
§  470. 

Width  of  road,  §  465. 

Where  may  construct  road,  §  465.  , 

Wood,  stone  and  earth  may  be  taken  from  state  lands, 
§  476. 
RANSOM   of  ship  and  cargo,   §   2380. 
RATE  OF  INTEREST,  annual,  §  1916. 

Bottomry,    §    3022. 

Judgment,  on,  §  1920. 


RATE  OF  INTEREST  REAL  PROPERTY.       983 

Legal,  §§  1917,  1918. 

Respondentia,  §  3039. 

See  Interest. 
RATIFICATION  of  acts  of  agent,  §  2307. 

Of  contract  void  for  want  of  consent,  §  1588. 

Of  voidable  contract,   §§   1588,  2310, 

Partial,  when  total,  §  2311. 

Prejudice  of  third  person  forbidden,  §  2313. 

Rescission  of,  §  2314. 

When  void,  §  2312. 
REAL  PROPERTY:      See  Property. 

Accessions:     See  Accession. 

Accumulations,  §§  722-733. 

Acquisition,  modes  of,  §  1000. 

Adverse   possession,    §    1007. 

Agreement  to  convey,  statute  of  frauds,  §  1741  • 

Alienation,  suspension  of:      See  Alienation. 

Appointment,  effect  of  power  of,  §  781. 

Appurtenances  are  what,   §  662. 

Assignment  for  creditors,   §  3466. 

Assignee  of  lessee,  liability  of,  §  822. 

Benevolent  corporation,  right  to  own,  §§  595-598. 

Boundaries  by  road  or  street,  §  831. 

Boundaries  by  water,  §  830. 

Broker,  statute  of  frauds,  §  1624. 

Chattels  real  defined,  §  765. 

Chattels  real,  suspending  alienation  of,  §  770. 

Community  property:      See   Property. 

Conditional  fees  abolished,  §  763. 

Conditional  limitation,  §  778. 

Conditions  precedent  and  subsequent,  §§  708-711. 

Conditions     precedent     and     subsequent,     grant     on, 
§§  1109,  1110. 

Conflict  of  laws,  §  755. 

Consists  of  what,-§  658. 

Contingent  remainder:      See  Remainders. 

Conveyance,  how  only  can  be  transferred,  §  1091. 

Conveyance  of:     See  Conveyance. 

Corporation  may  acquire,  and  how  much,  §  360. 

Covenant:      See  Covenants. 

Damages  for  wrongful  occupation,  §  3334. 

Deeds:      See  Conveyance. 


•84  REAL    PROPERTY. 

Devisee's  right  to  recover  rents,  etc.,  §  821. 

Distribution  of:      See  Succession. 

Easements:     See  Easements. 

Ejectment,  notice  not  necessary  before,  §  793. 

Escrow,  delivery  in,  §  1057. 

Estates  at  will  are  chattel  interests,  §  765. 

Estates  enumerated,  §§  701,  761. 

Estates  for  life,  limitation  of  successive,  §  774. 

Estate  for  life  of  third  person  a  freehold,  §  766. 

Estates  for  life,  remainder  of,   §   777. 

Estate  in  fee  defined,  §  762. 

Estates  of  inheritance,  §  762. 

Estates  tail  abolished,  §  763. 

Estate,  time  of  creating,  §  749. 

Fee,  defined,  §  762. 

Fee,  words  of  inheritance  not  necessary  to  transfer  of, 

§  1072. 
Fence,  partition,  duty  to  maintain,  §  841. 
Fixtures:      See   Fixtures. 
Freeholds  are  what,  §  765. 

Freehold,  estate  for  life  of  third  person  is,  §  766. 
Future  estates  created  how,  §  773. 
Future  estate  to  commence  in  futuro,  §  767. 
Future  estates,  qualities,  §  699. 
Future  interests  defeated  when,  §§  739,  740. 
Future  interests   not  defeated   when,    §§   741,  742. 
Future  interests,  what  not  recognized,  §  703. 
Future  interests:     See  Future  Estate;  Future  Interests. 
Heirs  and  issue,  interpretation  of,  §  1071. 
Heirs  of  tenant  for  life,  when  to  take  as  purchasers, 

§  779. 
Highway   as   boundary,    §    831. 
Includes  what,  §§  14,  658. 
Income,  accumulation  of,  §§  722-733. 
Incumbrance  includes  what,  §  1114. 
Infant's  contracts  respecting,  §  33. 
Insurance  companies  may  purchase  and  hold,  §  415. 
Interests  in,  denominated  estates,  §  701. 
Interests  in,  generally,  §  701. 
Interest,  time  of  creating,  §  749. 
Interests  in:     See  Property. 
Islands,  to  whom  belong,  §§  1016-1018. 


REAL    PROPERTY.  985 

Judgment  for  possession  or  title,  §  3375. 

Kinds  of,  §  658. 

Land  ia  what,  §  659. 

Lateral  support,  excavations,  §  832. 

Laws  governing,   §  755. 

Lessees  and  their  assignees,  rights  of,  §  823. 

Lessee's  assignee,  liability  of,  §  822. 

Limitation  of  successive  estates  for  life,  §  774. 

Minor's  contract  respecting,   §   33. 

Monuments,  duty  of  coterminous  owners  to  maintain, 

§  840. 
Obligations  of  coterminous  owners,    §   841. 
Occupancy,  title  by,   §   1006. 
Owner's  rights  above  or  beneath,  §  829. 
Perpetuities,  §§  715,  716. 
Posthumous  children,  §§  739,  1403. 
Power  of  appointment,  effect  of,  §  781. 
Powers,   execution  of,   §  860. 
Prescription,   §  1007. 
Profits   liable   to    creditors,    though   trust   to    receive 

same,  §  859. 
Purchasers,   heirs   of   life   tenant   to   take   as,   when, 

§  779. 
Recording  instruments  affecting:    See  Recording. 
Re-entry,   transfer  of  right  to,   §  1046. 
Re-entry,  when  and  how  to  be  made,  §  791. 
Remainders:     See  Remainders. 

Rent  dependent  on  life  recoverable  after  death,  §  825. 
Rents,  grant  of,  §  1111. 
Rents  liable  to  creditors,  though  trust  to  receive  same, 

§  859. 
Rents,  right  'of  grantee  to  recover,  §  821. 
Restraints   upon   alienation,   void,    §  711. 
Reversions:      See  Reversions. 
Right  of  way,  §  802. 
Rule  in  Shelly's  case,  §  779. 
Sale  of,  agreement  for,  §§  1731-1734. 
Servitudes:      See   Easements. 
Shelly's  case,  §  779. 

Social  corporation,  right  to  hold,   §§  595-598. 
Specific  performance  of  contract  to  convey,  §  1741. 
Specific  performance:     See  Specific  Performance. 
Civ.  Code— 42 


986  REAL    PROPERTY— RECEIVER. 

Statute  of  frauds,  agreement  to  convey,  §  1741. 

Street  as  boundary,   §  831. 

Successive   estates,  for  life,   limitation  of,   §  774. 

Tenancy  at  will,   termination  of,   notice,    §§  789,  790. 

Tenant  at  will,  rights  of,  §§  819,  820. 

Tenant   for   life,    duty   as   to    buildings,   fences,   etc., 
§840. 

Tenant  for  life,  rights  of,  §  818. 

Tenant  for  life,  taxes  and  charges,  duty  to  pay,  §  840. 

Tenant  for  years,  rights  of,  §§  819;  820. 

Termination  of  ownership,  in  general,   §§  739-742. 

Termination   of  tenancy   at   will,   notice,    §§  789,   790. 

Timber,  cutting  or  injuring,  damages  for,  §  3346. 

Time  of  creating  interest,   §  749. 

Time  of  enjoyment,   fixing,    §  707. 

Title  deeds,   §  994. 

Transfer  of:    See  Conveyance. 

Trees  on  the  line,  §  834. 

Trees  wholly  on  land  of  one,  §  833. 

Trusts:      See   Trusts. 

Trusts  and  uses  in  relation  to,  §§  847-871.' 

Trust  to  be  written,   §  852. 

Uses:      See  Trusts. 

Uses  and   trusts  in  relation  to,   §§  847-871. 

Warranties,    liability    for,    §  1115. 

Warranties,  lineal  and  collateral  abolished,   §  1115. 

Waste,  grantee's  right  to  recover  for,   §  821. 
See  Waste. 

Waters  as  boundary,  §  830. 

What  included  in,   §  14. 

What  law  governs,  §  755. 
REASON  being  the  same,  rule  the  same,   §  3511. 

Ceasing,  rule  should  cease,  §  3510. 
RECEIPT,  insurance  premium,  of,  effect  of,  §  2598. 

Right  to   demand,   §  1499. 

Warehouse,  act  in  relation  to,  p.  778,  Stats. 

Wharfingers,  act  in  relation  to,  p.  778. 
RECEIVER,  alimony  to  enforce,  §  140. 

Appointing   where   alimony   or   maintenance    allowed, 
§  140. 

Statute  authorizing  corporation  to  act  as,  p.  702. 


RECONVEYANCE— RECORDING.  987 

RECONVEYANCE  by  grantee  on  non-performance  of  con- 
ditions   subsequent,    §  1109. 
Cancellation  or  re-delivery  of  grant,  not,  §  1058. 
RECORDER,  city,  may  solemnize  marriage,  §  70. 

RECORDING,  acknowledgment  of  instrument  executed  by 
corporation,   §  1161. 

Acknowledgment,  what  instruments  cannot  be  re- 
corded without,   §  1161. 

Acknowledgment,  what  instruments  may  be  recorded 
without,   §§  1159,   1160. 

AflBdavits  of  work  and  notices  respecting  mining 
claims,   §  1159. 

Another  county,  recording  copy  in,  and  its  effect, 
§  1213. 

Assignment  for  creditors,   §§  3458,  3459. 

Bona  fide  purchaser,  rights  against  unrecorded  in- 
strument, §  1107. 

Books  of  record,   §  1171. 

By-laws  of  corporation,  §  304. 

Certified  copy  of  recorded  conveyance  recorded  in 
another  coimty,   as   notice,    §  1213. 

Certified  copies  of  record  as  evidence,  §  1207. 

Chattel  mortgage,   §  2957. 

Complete   when,    §  1170. 

Conveyance,   copy  of,   in  another  county,   §  1213. 

Conveyance  defined,    §  1215. 

Conveyance  recorded   before   code,   §§  1205,  1206. 

Conveyance  void  unless  recorded,  when,  §  1214. 

Conveyance,  where  and  to  whom  notice,  §  1213. 

Conveyance  within  meaning  of  recording  act,   §  1215. 

Copy  in  another  county,  §  1213. 

Corporation,  acknowledgment  of  instrument  recorded 
by,   §  1161. 

Corporation,  records  of,   §§  377,   378. 

County  in  which  instruments  to  be  recorded,  §§  1169, 
2480. 

Curative  act,  act  curing  defectively  executed  instru- 
ments, §  1207  . 

Declarations  of  marriage,   §  79i/^. 

Deed   absolute   intended   as   mortgage,    §  2950. 

Deeds  and  mortgages  separately,   §  1171. 

Discharge  of  mortgage,  §  2940. 


988  RECORDING. 

Duties  of  recorder,  §  1172. 

Evidence,  certified  copies  of  record  as,  §  1207. 

Fees  of  recorder  to  be  indorsed  on  instrument,  §  1165. 

Grants  and  mortgages  to  be  recorded  in  separate 
books,   §  1171. 

Homestead  declaration,  where  recorded,  §  1264. 

Homestead  selection,  §^  1262,  1269. 

Instruments  proven  and  certified,  §  1162. 

Instruments  whicli  may  be  recorded,  §  1158. 

Inventory  of  wife's  property  and  its  effect,  §§  165,  166. 

Judgjients  may  be  recorded,  §  1158. 

Judgments  may  be  recorded  without  acknowledg- 
ment, when,   §  1159. 

Lease  for  not  more  than  year,   §  1214. 

Letters  patent  may  be  without  acknowledgment, 
§  1160. 

Liens,  §  1164. 

L<5st  letters  patent,  recording  certified  copy  of,  §  1160. 

Marriage  certificate,  §  74. 

Marriage  declaration,   §  77. 

Marriage  settlement,   §§  179,  180. 

Marriage  settlement  and  its  effect,  §§  179,  180. 

Mortgage,   §  1164. 

Mortgages  and  grants  to  be  recorded  in  separate 
books,  §  1171. 

Mortgage  in  general,   §  2952. 

Mortgage  of  ship,   §  2958. 

Mortgages,  recording  of,  §  2952. 

Notice,  certified  copy  of  recorded  conveyance  recorded 
in  another  county,   §  1213. 

Notice,  record  of  assignment  of  mortgage  as,  §§  2934, 
2935. 

Notice,  record  of  instrument  before  as,  §§  1207,  1903. 

Notice,  record  of  conveyance  is,  §  1213. 

Notice,  copy  of  conveyances  recorded  in  another 
county  is,  §  1213. 

Notice  of  appropriation  of  water,   §  1421. 

Notice  of  location  of  mining  claims,  §  1159. 

Office,  in  what  made,  §  1169,  2480. 

Partnership,  of  certificate  of,-  §  2480. 

Partnership,  special,  dissolution  of,   §   2509. 

Power  of  attorney  and  revocation  thereof,  §  1216. 


RECORDING— REGISTRY.  989 

Priority  of,  §  1214. 

Proof   of    instrument,    action    for,    and    effect    of    the 
judgment,    §§  1203,    1204. 

Trust,  transfer  in,   §  1164. 

"Unrecorded    instrument,    effect   of   against   bona    fide 
purchasers,   §  1214. 

Unrecorded  instrument,  effect  of  as  against  judgments, 
§  1214. 

Unrecorded   instrument   good   as   to   those   who   have 
notice,    §  1217. 

Unrecorded  instrument  good  between  parties,   §  1217. 

Vessels,    transfer   of,    recording   governed   by   federal 
laws,  §  1173. 

Want  of,   its  effect,   §  1217. 

What  law  governs,   §§  1205,  1206. 

What  instruments  may  be  recorded,   §§  1158,  1162. 

When  instrument  deemed  recorded,  §  1170. 

Where,  in  what  county,  §§  1169,  2480. 

Wine  sale,   §  3440. 
RECRIMINATION   defeats  divorce,   §  111. 
RE-DELIVERY  of  grant  does  not  re-transfer,  §  1058. 
REDEMPTION,  contract  in  restraint  of,  void,   §  2889. 

Foreclosure  of  right  of,  §  2931. 

Foreclosure  of  right  to  redeem  pledge,   §  3011. 

Franchise,  of,    §  392. 

Franchise,  of,  from  execution  sale,  §  392. 

Lien,   from,    §§  2903-2905. 

Releasing  right  of,  in  assignment  for  creditors,  §  3468. 
See  Liens. 
RE-ENTRY,  transfer  of  right  to,   §  1046, 

When  and  how  to  be  made,  §  791. 
REFEREE   in   divorce   cases,   §  130. 
REFORMATION,  contract  may  be  reformed  when,  §  3399. 

Fraud,  reformation  of  contract  for,   §  3399. 

Mistake,   reformation  of  contract  for,    §  3399. 

Presumption  as  to  intent  of  parties,  §  3400. 

Principles  of,  §  3401. 

Specific  performance   of  reformed   contract,   §  3402. 

What  inquiry  made  by  court,   §  3401. 
REGISTRATION:     See   Recording. 
REGISTRY,  ships,  of,   §  966. 


990        REINSURANCE — RELIGIOUS,   ETC.,  CORPORATIONS. 

REINSURANCE   defined,   §  2646. 

What  communicated  on,  §  2647. 

Presumed  against  liability,   §  2648.  ■ 

Original  insured  no  interest  in,  §  2649. 
RELATION  of  right  to  water,  §  1418. 
RELATIONSHIP,  degrees,  how  computed,   §§  1389-1393. 

Half  blood,  right  to  succeed,  §  1394. 

Husband  and  wife  cannot  impair  legal,  §  159. 

Succession  though  illegitimate,   §  1388. 

RELATIVES,   alienage   of,   right  of   succession,    §  1404. 

Legacies  to,  chargeable  with  debts,  §  1361. 

Of  half  blood  succeed  alike  with  whole  blood,  §  1394. 

Protect  child  from  parental  abuse,  §  203. 

Right  of  defense  of,   §§  43,  50. 
RELEASE,  creditor,  by,  obligation  extinguished  by,  §  1541. 

Debtor,  of,  by  substitution,   §  1531. 

General,   effect  on   claims   creditor   did   not  know  of, 
§  1542. 

General,   extent  of,    §  1542. 

Guardian,  release  to  by  ward,   §  256. 

Joint  debtors,  of,   §  1543. 

Obligation   extinguished   by,   §  1541. 
RELIEF:     See  Damages. 

In  general,  §  3274. 

Preventive  relief:      See  Preventive  Relief. 

Specific:      See  Specific  Relief. 
RELIGIOUS,    SOCIAL,    AND    BENEVOLENT    CORPORA- 
TIONS, articles  to  set  forth  what,  §§  594,  602, 
604. 

By-laws,  §§  599,  603,  604. 

Certificate   of   incorporation,    §  603. 

Cemeteries,   §  595. 

See  Cemetery  Corporations. 

Corporations  sole,  articles  of  incorporation,  §  602. 

Corporations     sole,     electing    to     continue     existence 
under  code,  §  602. 

Corporations  sole,  limit  on  land  held  by,  §  602. 

Corporations   sole,   may   become   when,   §  602. 

Corporations   sole,  powers  of,   §  602. 

Corporations   sole,   proof   of   appointment   or   election 
of  bishop,   priest,   etc.,    §  602. 


RELIGIOUS,    ETC.,    CORPORATIONS— REMAINDERS.        991 

Corporation   sole,    superior   judge   to    have   access    to 
books,   §  602. 

Directors'  annual  report,  §  597. 

Directors,   election   and   number   of,    §  593. 

Directors,  election  of,    §§  603,   604. 

Election    of    directors,    officers    conducting    to    verify 
proceedings,    §  594. 

Elections,   no   cumulative  voting  unless   by-laws  pro- 
vide,   §  307. 

Fees,   qualification,   etc.,   of  members,    §  599. 

Formed  how,  §  593. 

Incorporation   of  religious   societies,    §§  603,    604. 

Indebtedness  of,   §  599. 

Insurance  laws,  fraternal  societies  exempt  from,  §  451. 

Insurance:      See  Insurance;    Insurance  Corporation. 

Limitation  on  right  to  hold  land,  §§  595,  596,  603,  604. 

May  hold  real  estate,   §§  595,   596. 

May  sell  or  mortgage  real  estate,  how,  §  598. 

Members    admitted    after    incorporation,    §  600. 

Membership   in,   how   only   transferred,    §  601. 

Mortgage   of   property,    §  598. 

Officers,  meetings,  etc.,   §  599. 

Orphan   asylums,    §  595. 

Orphan  asylum  may  hold  how  much  property,  §  595. 

Property  of,    §§  603,    604. 

Records  to  be  kept  by,   §  378. 

Records  to  be  open  to  inspection,  §  378. 

Religious    society,    incorporation   of,    §§  603,    604. 

Rules  and  regulations  of,   §  599. 

Rules   of   religious    denominations   requiring   adminis- 
tration  of   temporalities,    §  602. 

Surplus  real   estate  to  be   sold,   §  596.  • 

RELIGIOUS  SOCIETY,  incorporation  of,   §§  603,  604. 
REMAINDERS,    conditional    limitation,    remainder  when 
deemed   to  be,    §  778. 

Construction  as  to  time  of  taking  effect,   §  780. 

Contingency,    upon,    §  778. 

Contingent   estate,    created   how,    §  773. 
'_  Contingent  on  prior  remainder  in  fee,   §  772. 

Contingent,  in  fee,   §  772. 

Contingent,  on  term  of  years,   §  776. 

Contingent  remainder  in  fee,   §  772. 


992  REMAINDERS. 

Contingent   remainder   on   term   of   years,    §  776. 

Created,   how,    §  773. 

Death  of  devisee  before  testator,  effect  on,   §  1344. 

Defined,  §  769. 

Estate   for   life,   remainder   may   be   limited   thereon, 
§  773. 

Fee,  remainder  in,  limited  upon  fee  tail,  effect  of,  g  764. 

For  life  upon  term  of  years  must  be  to  one  in  esse, 
§  777. 

Future  and  contingent  estates,  how  created,  §  773. 

Grant   of,    §  1111. 

Grant    of    effectual    without    attornment     of     tenant, 
§  nil. 

"Heirs"   and  "issue,"  meaning  of,   §  1071. 

In  fee  upon  fee  tail,  §  764. 

Lapse   of   limited    interest,    effect   on   remainderman, 
§  1344. 

May  be  limited  without  intervention  of  precedent  es- 
tate,  §  767. 

May  be  limited  on  termination  by  any  means  of  pre- 
cedent estate,  §  767. 

Of  estates  for  life,    §  777. 

Owner  may  sue  for  injury  to  inheritance,  §  826. 

Shelly's  case,  rule  in  abolished,  §  779. 

Successive  estates  for  life  cannot  be  limited  except 
to  persons  in  being,  §  774. 

Successive   estates   for  life   upon,    §  775. 

Term  of  years,  contingent  remainder  on,  §  776. 

Term  of  years  may  be  created  expectant  on,  §  773. 

Upon    contingency,    §  778. 

Upon  an  estate  for  life  created  in  a  term  of  years, 
§  773. 

Upon  estate  for  life  in  a  term  of  years  must  be  for 
residue,   §  775. 

Upon  successive  estates  for  life  some  of  which  are 
void,    §  774. 

Upon  estates  for  life  or  term  of  years,  §  775. 

Valid,  when,  §  764. 

\ested    or   contingent   may   be   created   on   term   of 
years,   §  773. 

What  title  vests  under,   §  779. 

See  Future  Interests.  • 


RENT— RESCISSION.  993 

RENT,  acceptance,  when  renewal  of  lease,   §  1945. 

Covenant   for  payment  runs   with   land,   §  1463. 

Dependent  on  life,  recoverable  after  death,   §  825. 

Forfeiture  by  letting  room  in  parts,   §  1950. 

Grant  of,   §  1111. 

Grantee's   right  to   recover  for,    §  821. 

Life,  under  lease  for,  §  824. 

Payment  to  grantor,  binding  on  grantee,   §  1111, 

Payable,   when,    §  1947. 

Remedies  by  assignees,   §§  821,  822,  823. 

Servitude,  right  of  taking  as,   §  802. 

Term  of  hiring  indicated  by,  §  1944. 

Treble,   §§  3344,  3345. 

Trust,  express,  to  receive,   §  857. 

See  Landlord  and  Tenant. 
REPAIR,  borrower,   when  to,    §  1889. 

Coterminous  owners  to  repair  fence,  §  841. 

Hirer  of  personal  property,  at  expense  of  letter,  §  1956. 

Hirer,   when   to,   §  1929. 

Landlord,   when   to,    §  1941, 

Lettee's   obligations   as   to,    §  1955. 

Letter  of  personal  property,   §  1955. 

Owner  of  estate  for  life  to,  §  840. 

Shipmaster,   §  2376. 

Ship,  owner  for  voyage  to,   §  965. 

Tenant  at  expense  of  landlord,  §  1942. 

Tenant  for  life  to  repair  fence,  §  840. 
REPEAL  of  former  statutes,   §  20. 
REPORT,   appraisers   of   homestead,    §  1252. 

Official    proceedings,    privileged,    §  47. 
REPRESENTATION,   inheritance   by,    §  1403. 

Inheritance  by  right  of  takes  place,  when,  §  1403. 
RESCISSION,    application   of   performance,    rescission   of, 
§  1479. 

Buyer,  by,  at  auction  for  by-bidding,   §  1797. 

Buyer,  by,  if  seller  refuses   inspection,   §  1785. 

Buyer,  by,  on  breach  of  warranty,  §  1786. 

Conditions    of,    §  1691. 

Consent  not  free,   subject  to,   §  1566. 

Contract,  of,  in  what  cases  allowed,   §  1689. 

Contracts,  of,  when  adjudged,   §  3406. 


884  RBSCISSIO^^— RESPONDENTIA. 

Diligence  in,   §  1691, 

Effected,  how  accomplished  when  not  consented  to, 
§  1691. 

Equity,  party  required  to  do,   §  3408. 

Extinguishes   contract,   §  1688. 

Grounds   for,    §§  1689,   3406. 

Infant,  by,  §  35. 

Insane  persons,  §  39. 

Insurance  of,  for  concealment,  §§  2562,  2569. 

Insurance,  of,  for  false  representation,   §  2580. 

Insurance,  of,  at  what  time  may  be  executed,  §  Z85Z. 

Lunatic,  by,   §  39. 

Mistake,  for,   §  3407. 

Novation,  of,  §  1533. 

Of  alteration  of  obligation  does  not  restore  guaranty, 
§  2821. 

Person   not   without   understanding,    §  39. 

Ratification  of,   §  2314. 

Requirements  on  adjudging,  §  3408. 

Restoration  of  benefits,   §  1691. 

Risk,   for   alteration   increasing,    §  2753. 

Sale  for  nonpayment  of  price,  §  1749. 

Stipulation,    not    barred    by,    §  1690. 

Stoppage  in  transit  is  not,  §  3080. 

Third  person  may  enforce  contract  before,  §  1559. 

Valuation,   for   fraudulent,    §  2736. 

Warranty,  for  violation  of,  etc.,  §  2608. 
RESERVATIONS,  interpreted  in  favor  of  grantor,  §1069. 
RESIDENCE:      See  Domicile. 

Guardian  may  fix,  of  ward,  §  248. 
RESIDUE,   of   testator's   estate,    devise   of,    §  1332. 

Of  testator's  estate,  bequest  of,   §  1333. 

Remainder  on,  §  775. 
RES  JUDICATA,  judgment  annulling  marriage,  §  86. 
RESPONDENTIA    defined,    §  3036. 

Fraudulent  conveyance,  delivery,  §  3440. 

Interest,  rate  of,   §  3039. 

Is  subject  to  law  of  liens,  §  2877. 

Master,  by,   §  3038. 

Not  affected  by  law  of  mortgages,  §  2942. 


RESPONDENTIA— REVOCATION.  BSft 

Owner's  obligations  to  repay,  §  3040. 

Owner  of  cargo,  by,  §  3037. 

Priority  of  lien,   §  2897. 

See  Bottomry. 
RESTORATION,     necessary    on    rescission    of    contract, 
§  1691. 

Of  deposit,  terminates  duties  of  depositary,  §  1847. 

Of  thing  found,  §  1871. 

Of  thing  wrongfully  obtained,    §§  1712,   1713. 

Lien    extinguished    by,    §  2913. 
RESTRAINT,   Alienation,   of,  when  void,   §§  711,  716. 

Marriage,  of,  when  void,  §§  710,  1676. 

Protection  from  bodily,  §  43. 

Redemption  from  lien,  of  right  of,  §  2889. 
RESTRAINT   OF  TRADE,   contracts  in,    §§  1673-1675. 

On  sale  of  good-will,  §  1674. 

In  partnership  arrangements,  §  1675. 
RETROACTIVE,  code  is  not,   §  3. 

Code  is  not,  as  to  wills,  §  1375. 

Corporations,   legislature   may   repeal   or  amend  laws 
relating  to,  §  384. 
REVERSION,  grant  of,  §  1111. 

Grant  of  effectual  without  attornment  of  tenant,  §  1111. 

Of  land   granted   to   corporations,   §  477. 

Estate   in,   defined,    §  768. 

Owner  may  sue  for  injury  to  inheritance,  §  826. 

Remedies    of   reversioner    for    rent,    non-performance, 
waste   or   forfeiture,    §  821. 

Reversioners,    remedies   of,    §  826. 
REVISION   OF  contract;   §§  3399-3402. 

See  Reformation  of  Contracts. 
REVOCATION:      See   Contract. 

Condonation,  of,  §  121. 

Consent  to  separation  subject  to,   §  101. 

Gift  in  view  of  death,  of,   §  1151. 

Guaranty,   of   continuing,    §  2815. 

Power  of  attorney,  of,   §  1216. 

Power  of,  when  deemed  executed,   §§  1229,  1230. 

Proposal  to  contract,  of,   §  1586. 

Trust,  of,   §  2280. 

See  Wills. 


996  REWARD— SALE. 

REWARD,  finder  of  property  entitled  to  what,  §  1867. 
RIGHT  OF  WAY,  in  general,  §§  801,  802. 

Selection   by   railroad,    §  478. 

Street  railway,  of,   restrictions   on,   §  498. 

Telegraph  corporations,  of,   §  536. 
RIGHT   TO    CONVEY,    damages    for    breach   of   covenant 

of,    §  3304. 
RIOT,  deposit  in  case  of,   §§  1815,  1816. 
RIVER:      See  Waters. 
ROAD:      See  Highways;    Wagon  Road  Corporation. 

Boundary,  road  as,   §  831. 
SAILOR:      See   Shipping. 
SALE:      See   Transfer. 

Agreement  for,    §  1726. 

Agreement  for,  what  may  be  subject  of,   §  1730. 

Agreement  to  buy,   definition  of,    §  1728. 

Agreement  to  sell,  definition  of,   §  1727. 

Agreement  to  sell  and  buy,  defined,  §  1729. 

Auction,  absolute  rights  of  buyer,  §  1796. 

Auction,    auctioneer's    memorandum,    §  1798. 

Auction,  bids  by  seller  void,  §  1796. 

Auction,   by-bidding,    §  1797. 

Auction,    complete    when,    §  1793. 

Auction  defined,  §  1792. 

Auction,  withdrawal  of  bid,  §  1794. 

Auction,    written    conditions    not    alterable    by    parol, 
§  1795. 

Baggage,  of,  by  innkeeper  for  storage,  §  1862. 

Bill  of  sale,  §  1053. 

Bona  fide  purchaser,  title -of,  §  1142. 

Breach  of,  damages  for,  §§  3353-3355. 

Buyer  acquires  better  title  than  seller,  when,  §  1142. 

Buyer's  direction  as  to  sending  thing  sold,  §  1757. 

Buyer  must  take  away  thing,  when,  §  1784. 

Cargo,  master's  power  to  sell,  §  2379. 

Carrier's  sale  of  perishables  for  freightage,  §  2204. 

Complete,  when,  §  1140. 

Consignment:    See  Consignment;   Factor. 

Consignee  defined,  §  2110. 

Consignor  defined,  §  2110. 

Damages  for  breach  of  agreement  to  buy,  §  3311. 


SALE.  997 

Damages  for  breach  of  agreement  to  deliver,  §  3309. 
Damages  for  breach  of  agreement  to  pay,  §  3310. 
Damages  for  breach  of  agreement  to  sell,  §  3308. 
Damages  for   breach   of   contract  of,   value   estimated 

how,  §§  3353-3355. 
Damages  for  breach  of  warranty  of  quality,  §  3313. 
Damages  for  breach  of  warranty  of  quality  for  special 

purpose,  §  3314. 
Damages  for  breach  of  warranty  of  title,  §  3312. 
Defined,  §  1721. 

Definition  of  agreement  to  buy,  §  1728. 
Delivery  on  demand,  §  1753. 
Delivery,  expense  of  transportation,  §  1755. 
Delivery,  notice  of  election  as  to,  §  1756. 
Delivery,  option  as  to,  time  for  exercise  of,  §  1756. 
Delivery,  place  of,  §§  1754,  1755. 
Delivery,  property  to  be  put  in  condition  for,  §  1753. 
Delivery,  seller  a  depositary  before,  §  1748. 
Delivery,  void  without,  §  3440. 
Delivery  within  reasonable  hours,  §  1758. 
Deposits,  of  perishable,  §  1837. 
Election  as  to  delivery,  notice  of,  §  1756. 
Exchange  in  general,  §§  1804-1807. 
Exchange,  loan  for,  §§  1902-1906. 
Executory  contract  of,  title  passes  when,  §  1141. 
Factor,  by,  for  reimbursement,  §  2027. 
Five  days'  notice  of  sale  of  stock  in  trade,  §  3440. 
Form  of  contract,  §  1739. 
Found  thing,  of,  §§  1869,  1870. 
Frauds,  statute  of,  §§  1624,  1739,  1740. 
Fraudulent:    See  Fraudulent  Conveyance. 
Inspect  goods,  right  to,  §  1785. 
Lien  extinguished  by,  §  2910. 
Lien  of  seller,  §  3049. 

Manufacture,  contract  to,  need  not  be  written,  §  1740. 
Notice  of  sale  of  stock  in  trade,  §  3440. 
Option  as  to  delivery,  time  for  exercise  of,  §  1756. 
Payment,  failure  of,  remedies  of  seller,  §  1749. 
Payment  on  delivery,  §  1784. 
Perishable  deposits,  sale  of,  §  1837. 
Price,  when  to  be  paid,  §  1784. 
Resale,  when  may  be  had,  §  1749. 


998  SALE. 

Rescinding  for  nonpayment,  §  1749. 

Rescission  for  breach  of  warranty,  §  1786. 

Ship,  master's  power  to  sell,  §  2378. 

Statute  of  frauds,  §§  1624,  1739,  1740. 

Stock  for  delinquent  assessments,  §  341. 

Stoppage  in  transit,  effected  how,  §  3079. 

Stoppage  in  transit,  effect  of,  §  3080. 

Stoppage  in  transit,  insolvency  of  consignee  Is  what, 

§  3077. 
Stoppage  in  transit,  transit  ends  when,  §  3078. 
Stoppage  in  transit,  when  proper,  §  3076. 
Storage  property,  of,  §  1857. 
Title  passes  when,  §  1140. 

Title  passes  when,  in  executory  contract,  §  1141. 
Title,    when    buyer    acquires   better   than    seller   had, 

§  1142. 
To  enforce  lien  on  property,  §  3052. 
Transfer  by,  code  provisions  governing,  §  1136. 
Transportation,  risk  and  expense  of,  §  1755. 
Transportation,  risks  of,  §  1757. 
Void  if  no  delivery,  §  3440. 

Warranty,  agreement  to  sell  does  not  imply,  §  1765. 
Warranty,  breach  of,  rights  on,  §  1786. 
Warranty  by  agent,  §  2323. 
Warranty    by    manufacturer    against    latent    defects, 

§  1769. 
Warranty  defined,  §  1763. 
Warranty,  general,  effect  of,  §  1778. 
Warranty,  not  implied  in  contract  of  sale  or  agreement 

to  sell,  §  1764. 
Warranty  of  good-will,  §  1776. 
Warranty  of  inaccessible  thing,  §  1771. 
Warranty  of  marks,  §  1773. 
Warranty  of  merchandise  not  existing,  §  1768. 
Warranty  of  money  on  exchange,  §  1804. 
Warranty  of  provisions  for  domestic  use,  §  1775. 
Warranty  of  thing  manufactured  for  special  purpose, 

§  1770. 
Warranty  of  title,  §  1765. 
Warranty  of  trademark,  §  1772. 
Warranty  on  sale  of  written  instrument,  §  1774. 
Warranty  on  judicial  sale,  §  1777. 


SALE— SAVINGS    AND     LOAN    CORPORATION.  ^'•'O 

Warranty  on  sale  by  sample,  §  1766. 

Warranty  when  seller  knows  buyer  relies  on  his  state- 
ments, etc.,  §  1767. 

What  may  be  subject  of,  §  1722. 

Wines,  of,  delivery  not  necessary,  §  3440. 

Wines,  of,  recording,  §  3440. 

Wines,  of,  to  be  in  writing,  §  3440. 

Writing,  contract  when  to  be  in,  §§  1624,  1739,  1740. 
See  Transfer. 
SALVAGE,  cost  of  payable  through  general  average  con- 
tribution, §  2079. 

In  general,  §  2079. 

Lien  for,  §  2079. 

Priority  of  lien  for,  §  3028. 

Seaman's  abandonment  of  right  to,  void,  §  2052, 

Seamen's  wages,  §  2060. 

Who  entitled  to,  §§  2079,  2725. 
SAMPLE,  sales  by,  §  1766. 

SAN    FRANCISCO,  license  tax  on  street  cars  in,  §  508. 
SATISFACTION:    See  Accord  and  Satisfaction. 

Judgment  against  corporations,  of,  §  388. 

Judgment  against  homestead,  of,  §  1241. 

Legacies  and  gifts,  of,  §  1367. 

Penalty  for  refusing,  of  mortgage,  §  2941. 

Recorded  mortgage,  of,  §§  2938,  2941. 

What  operates  as,  §§  1523,  1524. 
SAVINGS  AND  LOAN  CORPORATION:    See  Bank. 

Bonds,  investment  in,  §  574. 

Capital,  amount  to  be  paid  up,  §  580. 

Capital,  amount  paid  up,  publication  of,  §  583a. 

Capital   stock,  all  to  be  subscribed  before  certificate 
issued,  §  580. 

Capital  stock,  amount  of  required,  §  580. 

Capital  stock,  amount  to  be  paid  on,  §  580. 

Capital  stock,  and  assets  security  for  depositors  and 
stockholders,  §  573. 

Capital  stock,  and  rights  and  privileges  thereof,  §  572. 

Capital  stock,  certificates  of  ownership  of,  §  572. 

Certificates  of  deposit,  general,  §  576. 

Certificates  of  deposit,  payable  to  transferee  or  legal 
representative,  §  576. 


1000  SAVINGS    AND    LOAN    CORPORATION. 

Certificates  of  deposit,  special,  §  576. 

Certificates  of  deposit,  transferable,  §  576. 

"  Create  debts  "  defined,  §  579. 

"  Create  debts,"  what  transactions  do  not,  §  579. 

Depositors  have  priority  over  stockholders,  §  573. 

Depositors,  time  and  conditions  of  repayment,  §  577. 

Directors,  prohibitions  on,  §  578. 

Dividends,  §  583. 

Dividends  to  be  made  only  from  surplus  profits,  §  573. 

Felony,   ofiicer   making   illegal   loans   or   investments, 

guilty  of,  §  581. 
Infants  may  deposit  and  draw  dividends,  §  575. 
Infants  may  own  stock,  §  575. 
Liability,  none  to  be  contracted  except  for  deposits, 

§  573. 
Limitation  on  powers  of  officers,  §  578. 
Loans,  duration  of,  §  571. 
Loans,  how  and  to  whom  made,  §  571. 
Loans,  on  what  property  may  be  made,  §  571. 
Loans  not  to  be  made  on  mining  shares  or  stocks,  §  5S1. 
Loans  not  to  exceed  sixty  per  cent  of  market  value  of 

realty,  §  581. 
Lot  and  building,  may  purchase,  §  574. 
Married  women  may  deposit  and  draw  dividends,  §  575. 
Married  women  may  hold  stock,  §  575. 
May  loan  money,  and  on  what  terms,  how,  to  whom, 

how  long,  §  571. 
Mining  shares,  money  not  to  be  loaned  on,  §  581. 
Office,  what  acts  of  officer  vacates,  §  578. 
Officers,  prohibitions  on,'§  578. 
Priority  of  depositors  over  stockholders,  §  573. 
Property  of,  how  disposed  of,  §  574. 
Property,  real  estate  to  be  sold  within  ten  years,  §  574. 
Property,  restrictions  on  purchasing,  §  574. 
Property  which  may  be  owned  by,  §  574. 
Property  which  may  not  be  owned  by,  §  574. 
Repayment  to  depositors,  §  577. 
Reserve  fund,  disposition  of,  §  577. 
Reserve  fund  for  payment  of  losses,  §  577. 
Surplus  and  reserve  fund,  creation  of,  §  583. 
Surplus  and  reserve  fund,  conversion  into  capital  stock, 

§  583. 


SAVINGS    AND    LOAN    CORPORATION-SEAMEN.        1001 

Surplus   and   reserve   fund,   restoration   of   after   con- 
sion  into  capital  stock,  §  583. 
.  Transferable  certificates  of  deposit,  §  576. 
See  Building  and  Loan  Corporations. 
SCIENTIFIC     CORPORATIONS.      No    cumulative    voting 

unless  by-laws  provide,  §  307. 
SEA,  carrier  not  liable  for  damages  caused  by  perils  of, 
§  2197. 

Perils  of,  defined,  §  2199. 
SEAL,  affixed  how,  §  1628. 

Distinction    between    sealed    and    unsealed    contracts 
abolished,  §  1629. 

When  officer  must  affix  to  acknowledgment,  §  1193. 
SEAMEN  are  who,  §  2049. 

Cannot  ship  goods,  §  2064. 

Certificate  of  exertion  to  save  cargo,  etc.,  §  2059. 

Contract  to  abandon  rights,  void,  §  2053. 

Driven  from  ship  by  cruelty,  rights  of,  §  2057. 

Engaged  and  discharged,  how,  §  2050. 

Laws  of  congress  govern,  §  2066. 

Lien,  §  3056. 

Maintenance  of,  during  sickness,  §  2061. 

Master's  power  over  seamen,  §  2037. 

Not  bound  to  go  in  unseaworthy  vessel,  §  2051. 

Nuncupative  will  of  seaman,  §  1289. 

Salvage,  seaman's  waiver  to  right  in,  void,  §  2052. 

Seaworthiness:      See  Seaworthiness. 

Special  contract  with,  validity,  §  2053. 

Wages  begin  when,  §  2055. 

Wages  depend  on  freightage,  §  2054. 

Wages,  driven  from  ship  by  cruelty,  right  to,  §  2057. 

Wages,  dying  during  voyage,  §  2062. 

Wages,  forfeited  by  theft  or  tort,  §  2063. 

Wages  forfeited  on  justifiable  discharge,  §  2063. 

Wages  in  case  of  capture,  §  2060. 

Wages  not  lost  by  agreement,  §  2052. 

Wages  of  disabled  seamen,  §  2060. 

Wages  on  wrongful  discharge,  §§2057,  2060. 

Wages,  priority  of  lien  for,  §  3028. 

Wages  where  voyage  broken  up,  8  2056. 

Wages  whether  lost  by  wreck,  §  2058. 


1002       SEARCHER  OF  RECORD— SEDUCTION. 

SEARCHER  OF  RECORD,  what  property  of,  may  be  mort- 
gaged, §  2955. 
SEAWORTHINESS,  at  what  time  must  exist,  under  insur- 
ance, §  2683. 

Defined,  §  2682. 

Degrees  of,  during  voyage,  §  2685. 

For  purpose  of  insuring  cargo,  §  2687. 

Implied  warranty  of,  in  insurance,  §  2681. 

Seamen  not  bound  to  sail  when  reasonable  doubt  as  to, 
§  2051. 

What  required  to  constitute,  §  2684. 
SECRETARY  OF  STATE,  proceedings  for  continuance  of 
corporations,  §  287. 

Copy  of  decree  changing  name  of  corporation  to  be 
filed  with,  §  300a. 

Prerequisites   before   issuing   certificate   of   incorpora- 
•  tion,  §  295. 

When  must  issue  certificate  of  incorporation,  §  296. 
SECURITY  by  assignee,  for  benefit  of  creditors,  §  3467. 

By  way  of  bottomry  (see,  also.  Bottomry,),  §  3017. 

By  way  of  lien  (see,  also,  Lien),  §  2872. 

By  way  of  pledge:    See  Pledge. 

By   way    of   respondentia    (see,    also,    Respondentia), 
§  3036. 

Contracts  of,  when  called  bail,  §  2780. 

For  alimony,  §  140, 

For  obligation,  does  not  prevent  direct  enforcement, 
§  2890. 

For  third  person,  pledge  as,  §  2992. 

For  what  lien  may  be,  §  2884. 

Held  by  creditor  or  cosurity,  surety  entitled  to  benefit 
of,  §  2849. 

Held  by  surety,  creditor  entitled  to  benefit  of,  §  2854. 

Indorser   having,   not   entitled   to   notice   of   dishonor, 
§  3157. 

Of  mortgagee  not  to  be  impaired  by  person  bound, 
§  2929. 

Power  to  sell  in  mortgage  deemed  part  of,  §  858. 
SECTION  of  code,  meaning  of,  §  14. 
SEDUCTION,  damages  for,  §  3340. 

In  general,  §  49. 

Wife,  seduction  of,  §  49. 


SEISIN— SHIPPING.  1003 

SEISIN,  damages  for  breach  of  covenant  of,  §  3304. 
SELF-DEFENSE,  right  of,  §  43. 
SEMINARY:    See  College. 

SEPARATION   and  intent  to   desert,   not  always   coexist, 
§  100. 

By  consent,  not  desertion,  §  99. 

Consent  to,  revocable,  §  101. 

Custody  of  child  in  case  of,  §  214. 

Domicile  in  case  of  separation  of  husband  and  wife, 
§  1^9. 

Husband  and  wife  may  agree  to  immediate,  §  159. 

Mutual  consent  sufficient  consideration,  §  160. 
SERVICE,  child's,  parent  may  relinquish,  §  211. 

Contract  of,  limited  to  two  years,  §  1980. 

Contract  for,  cannot  be  specifically  enforced,  §  3390. 

Employee  in  gratuitous  duties,  §  1975. 

Gratuitous,  when  relinquished,  §  1976. 

Lien  for,  §  3051. 

Limited  to  two  years,  §  1980. 

Of  carrier,  other  than  carriage,  §  2203. 

Of  depositary,  §  1839. 

Of  legitimate  unmarried  minor,  father  entitled  to,   197. 

Of  illegitimate  unmarried  minor,  mother  entitled  to, 
§  200. 

When  apprentice  may  recover  for,  §  276. 

Without  employment,  compensation,  §  2078. 
See  Master  and  Servant;  Wages. 
SERVITUDE:    See  Easement  and  Servitude. 
SETTLEMENT,  marriage:    See  Marriage. 

SHEEP,  killing  by  dogs,  §  3341. 

See  Animals. 

SHELLEY'S  CASE,  rule  in,  abolished,  §  779. 
SHERIFF,  lien  of,  for  levying  writ,  §  3057. 

See  Assignment  for  Creditors. 
SHIPMASTER:     See  Shipping. 

SHIPPING.    Abandonment,  duties  and  liabilities  of  master, 
§  2041. 
Abandonment,  master,  authority  of,  to  abandon,  §  2040. 
Abandonment  of  ship  by  master,  §§  2040,  2041. 


1004  SHIPPING. 

Abandonment  terminates  master's  authority,  §  2381. 

Appurtenances  of,  §  961. 

Averages,  manager's  powers  to  adjust,   §   2388. 

Bottomry,  insurable  interest  reduced  by,  §  2660. 

Cargo,  master  may  engage,  §  2376. 

Cargo,  master's  power  to  hypothecate,  §§  2375,  2377, 

3038. 
Cargo,  master's  power  to  sell,   §  2379. 
Cargo,  sacrifice  for  safety,  §  2148. 
Cargo,  sale  of  by  master,  owner's  rights,  §  2385. 
Cargo,  sale  of  perishable  or  damaged,  §  2377. 
Cargo,  ship's  manager  may  purchase,  §  2389. 
Capture  of  ship,  wages,  §  2060. 
Charterer,  insurable  interest  of,  §  2665. 
Charter  party  defined,  §  1959. 
Charter  party,  manager  may  enter  into,  §  2388. 
Charter  party,  master  may  enter  into,  §  2376. 
Compensation  of  manager,   §   2072. 
Collision  from  breach  of  rules,  liability,  §  971. 
Collision,  loss  apportioned  how,  §  973. 
Collisions,  rules  for  avoiding,  §  970. 
Congress,  laws  of  govern  officers  and  seamen,  §  2066. 
Co-owners,  disagreement  between,  court  to  determine, 

§  964. 
Delivery   not   necessary   to    validity   of    sale   of   ship, 

§  3440. 
Deviation  from  voyage,  §  2117. 
Deviation  from  voyage,  insurance,  §§  2692-2697. 
Domestic  navigation  defined,  §  962. 
Domestic  ship  is  what,  §  963. 
Enrollment  regulated  by  federal  laws,  §  966. 
Equipments  of,   §   961. 
Foreign  navigation  defined,  §  962. 
Foreign  ship  is  what,  §  963. 
Freightage,  insurable  interest  in,  §§  2661-2663. 
General  average,  §§  2148-2155. 
General  average,  insurance,  §  2744. 
General  average,  contribution  on  property  saved,  §  2079. 
Hiring  ship,  §  1959. 

Hypothecate,  power  of  master  to,  §§  2375,  2377. 
Impressing  private  stores,  §  2039. 
Insurance,  manager,  power  as  to,  §  2389  . 


SHIPPING.  1005 

Insurance:     See  Insurance. 

Interest  on  bottomry  contract,  §  3022. 

Jettison,  §§  2148-2155. 

Jurisdiction  where  several  owners  disagree,  §  964. 

License  governed  by  federal  statutes,  §  966. 

Liens  against,  priority  of,  §  3028. 

Lien  of  master,  §  3055. 

Liens  against,  debts,  when  are,  §  3060. 

Manager  defined,  §  2070. 

Manager's  compensation,  §  2072. 

Manager's  duties,  §  2071. 

Manager's  general  powers,  §§  2388,  2389, 

Manager  has  not  what  powers,  §  2389. 

Manager  is  general  agent  of  owners,  §  2070. 

Manager,  limitation  on  powers  of,  §  2389. 

Manager,  powers  as  to  insurance,  §  2389. 

Manager  presumed  to  have  no  compensation,  §  2072. 

Manager,  who  is,  §  2070. 

Managing  owner  of  ship  defined,  §  2070. 

Master's  abandonment  of  ship,  §§   2040,  2041. 

Master  a  general  agent  for  owner,  §§  2373,  2375. 

Master,  appointment  of,  §  2034. 

Master's  authority  as  agent,  law  governing,  §  2044. 

Master's  authority  in  general,  §§  2375,  2377,  2379,  3038. 

Master's  authority  terminated  by  abandonment,  §  2381. 

Master's  authority  to  borrow  money,  §  2374. 

Master's  authority  to  contract,  in  general,  §  2376. 

Master,  authority  to  make  repairs,  §  2376  . 

Master,  authority  to  ransom  ship,  §  2380. 

Master,  care  required  of,  §  2043. 

Master,  duty  of  as  to  reshipment,  §  2707. 

Master,  duty  of  where  voyage  broken  up,  §  2707. 

Master  holds  during  owner's  pleasure,  §  2034. 

Master's   liability   for   acts   of   persons   employed   on 

ship,   §   2383. 
Master's  lien,  §  3055. 
Master  may  be  charterer,  §  1959.  • 
Master  may  impress  private  stores,  when,  §  2039. 
Master  may  hypothecate  freight  money  when,  §  3021. 
Master  may  hypothecate  ship,  when,  §§  3019,  3020. 
Master  may  impress  private  stores,  §  2039. 
Master  may  procure  supplies,  §  2376. 


1006  SHIPPING. 

Master  not  to  trade  on  own  account,  §  2042. 

Master's  personal  liability  on  contracts,  §  2382. 

Master's  power  over  passengers,  §  2038. 

Master's  power  to  sell  ship,   §   2378. 

Master,   respondentia   by,    §   3038. 

Master  to  be  on  board  when,  §  2035. 

Mate  defined,  §  2048. 

Mate  cannot  ship  goods,  §  2064. 

Mate  engaged  and  discharged  how,  §  2050. 

Mate,  lien  of  for  wages,  §  3056. 

Mate,  maintenance  of  during  sickness,  §  2061. 

Mate  not  bound  to  go  in  unseaworthy  vessel,  §  2051. 

Mate,  office  of,  on  disability  of  master,  §  2048. 

Mate,  wages  begin  when,   §   2055. 

Mate,  wages  where  mate  dies,  §  2062. 

Mate,    wrongfully    discharged    or    driven    from    ship, 

rights  of,  §  2057. 
Meeting  of  sailing  vessels,  rules  for  passing,  §  970. 
Meeting  of  ships,  breach  of  rules  for,  implies  willful 

default,  §  972. 
Meeting  of  ships,  rules  for  passing,  §  970. 
Meeting  of  steamers,  rules  for  passing,  §  970. 
Mortgage  of,  code  sections  not  applicable  to,  §  2971. 
Mortgage  of  ship,  necessity  of  recording,   §  2958. 
Mortgage  of  vessels,   §   2955. 
Navigation,  foreign  and  domestic  defined,  §  962. 
Negligence,  master's  liability  for,   §  2043. 
Negligence  of  employees,  master's  liability  for,  §  2383. 
Neutral  papers,  insurance,  §  2688. 
Officers,  laws  of  congress  govern,  §  2066. 
Owner,  respondentia  by,   §   3037. 
Owner  for  voyage,  and  his  liability,  §  965. 
Partners,  whether  ship  owners  are,  §  2396. 
Part  owners,  jurisdiction  of  controversy  between,  §  964. 
Part  owner  may  be  a  charterer,  §  1959. 
Part  owners,  whether  partners,  §  2396. 
Passengers,  master  may  engage,  §  2376. 
Passengers,  master's  power  over,  §  2038. 
Passengers:      See  Carrier. 
Perils  of  sea  are  what,  §  2199. 
Perils  of  sea,  liability  for  loss  by,  §  2197. 
Pilotage,  §  2036. 


SHIPPING— SKILL.  lOOt 

Pilot,  navigation  of  ship  devolves  upon,  §  2036. 

Pilot's  negligence,  liability  of  master  for,  §  2384. 

Pilot,  when  master  must  take,  §  2036. 

Ransom  of.  ship,  master's  power,  §  2380. 

Repairs,  master  may  procure,  §  2376. 

Recording  transfer  of  vessels,   §  1173. 

Registry  governed  by  federal  statutes,   §  966. 

Rules  for  passing,  §  970. 

Rules  for  passing,  breach  of  implies  willful  default, 
§  972. 

Rules  for  passing,  breach  of,  liability,  §  971. 

Sale  of  ship,  delivery  not  necessary,   §  3440. 

Sale  of  ship,  when  master  may  order,  §  2378. 

Salvage,  in  general,  §  2079. 

Seamen:      See    Seamen. 

Seaworthiness  defined,  §  2682. 

Seaworthiness:      See   Insurance;    Seaworthiness. 

Several  owners,  jurisdiction  on  disagreement,  §  964. 

Ship  defined,  §  960. 

"Ships"  or  "shipping,"  what  included  in  terms,  §  960. 

Ships,  foreign  and  domestic  distinguished,  §  963. 

Shipping  defined,  §  960. 

Shipwreck,  deposit,  §  1815. 

Stowage,  §  2117. 

Telegraph  cable,  liability  for  dragging,  §  537. 

Transfers,   mode   of,    §  1176. 

Transfer  of  interest  in,  statute  of  frauds,  §  1135. 

Unseaworthy  ship,  seamen  not  bound  to  go  on,  §  2061. 

Voyage  and  deviation,  insurance,  §§  2692-2697. 

Wharfinger:     See  Warehousemen. 
SIERRA  COUNTY,  tolls  in,  §  514. 
SIGNATURE  includes  mark,  §  14. 

Of  oflBcer  taking  acknowledgment,  §  1193. 

In  indorsement,  §§  3109,  3110. 

Mark,  by,  two  witnesses  necessary,  §  14 
SIGNS,  there  may  be  ownership  in,  §  655. 
SINGULAR  includes  plural,  §  14. 
SINKING  FUND  to  pay  railroad  bonds,  §  457. 

SKILL:     See  Care. 

Borrower  must  exercise  what,  §  1888. 
Carrier  of  persons  must  use,  §  2100. 


1008  SKILL— SPECIAL    PARTNERSHIP. 

Defamation  is  effected  by,  §  44. 

Employee  must  use  reasonable,  §  1983. 

Employee  must  use  all  he  possesses,  §  1984. 

Injury  arising  from  want  of  ordinary,  §  1714. 

Right  to  protection  from,   §   43. 

Voluntary  depositary  must  use,  §  2078. 
SLANDER  defined,  §  46. 

Malice,   when   not  inferred,    §    48. 

Privileged  communications  defined  and  classified,  §  47. 
SOCIAL  ASSOCIATION  and  incorporation  thereof,  §§  593- 
604. 

See  Religious,  Social,  and  Benevolent  Corporations. 
SOCIAL  CORPORATIONS:     See  Religious,  Social,  and  Be- 
nevolent Corporations. 

Articles  of  -incorporation  what  to  set  out,  §  594. 

No  cumulative  voting  unless  by-laws  provide,  §  307. 
SOLDIER,  nuncupative  will,  §  1289. 

SOLE    CORPORATIONS,    religious    society    may    become, 
when,  §  602. 

See  Religious,  Social  and  Benevolent  Corporations. 
SPECIAL  PARTNERSHIP,  acknowledgment  and  record  of 
certificate,  §  2480. 

Afladavit  as  to  sums  contributed,  §   2481. 

Aflldavit    of    publication    of    certificate,    as    evidence, 
§   2484. 

Become  general,  when,  §§  2483,  2495,  2507. 

Certificate  of,  §  2479. 

Certificate  of,  to  state  what,  §  2479. 

Dissolution  of,   §   2509. 

Effect  of  false  statement  in  certificate  of,  §  2480. 

Effect  of  not  publishing  certificate,  §  2483. 

Effect  of  special  partner  withdrawing  capital,  §  2495. 

Formation  of,   §   2477. 

For  what  purposes  may  be  formed,  §  2477. 

Fraudulent  conveyances  by  special,  §  2496. 

General  and  special  partners,  §  2478. 

General  partner  may  sue  and  be  sued  alone,  §  2492. 

General,  special  to  what  extent  is,  §  2424. 

Insolvency,    creditors    preferred    to    special    partner, 
§   2491. 

Interest  and  profits,  §  2494. 


SPECIAL  PARTNERSHIP— SPECIFIC  PERFORMANCE.        1009 

Judgment  confessed  by  special  partner  void  as  to  cred- 
itors, §  2496. 
Liability  of  one  held  out  as  special  partner,  §  2^44. 
Liability  of  the  special  partners,  §§  2500-2502. 
Liability  of  ostensible  partner,  §  2444. 
Lien   by   special    partner,    void    as    against   creditors, 

§   2496. 
None  without  compliance  with  code,  §  2482. 
Of  what  may  consist,  §  2478. 
Only  the  general  partners  may  act,  §  2489. 
Preference  given  by,  void,  §  2496. 
Preference  to  creditors  over  special  partner,  §  2491. 
Preferential  transfer  by  special,  void  as  to  creditors, 

§   2496. 
Profits  and  interest  of  special  partnership,  §  2494. 
Publication  of  certificate  of,  §  2483. 
Renewal  of,  §  2485. 

Special  partners,  liability  of,  §§  2501,  2502. 
Special  partner,  loan  by  to  firm,  §  2491. 
Special    partner   may   investigate   affairs    and    advise, 

§   2490. 
Special  partner  may  not  withdraw  capital,  §  2493. 
Special  partner's  name  not  used,  unless  with  "limited," 

§  2510. 
Special  partners,  new,  admitted  how,  §  2508. 
Special  partner,  power  of,  §§  2490,  2491. 
To  what  extent  a  general  partnership,  §  2424. 
What  transfers  void,  §  2496. 

Who  cannot  charge  persons  as  general  partners,  §  2503, 
Who  may  question  existence  of,  §  2503. 
Withdrawal  of  capital  by  special  partner,  §§  2493,  2495. 
SPECIFIC    PERFORMANCE,    agreement    to   sell   by   one 

without  title,   §   3394. 
Devisee  or  legatee,  against,  §  1301. 
Contract  signed  by  one  party  only,  of,  §  3388. 
Contracts  that  cannot  be  enforced  specifically,  §§  3390- 

3392. 
Distinction  between  real  and  personal  property,  §  3387. 
Enumeration  of  cases,  where  will  be  denied,  §§  3390- 

3392. 
Forfeiture,  §  3369. 
Liquidation  of  damages  not  a  bar  to,  §  3389. 

Civ.   Code— 43 


1010  SPECIFIC    PERFORMANCE— STATE    LAND. 

Mutuality  a  prerequisite,  §  3386. 

One  must  be  able  to  give  free  title,  §  3394. 

Part   performance,    specific    performance    in    case    of, 
§  1741. 

Pecuniary  compensation,  when  adequate,  §  3387. 

Penalty,  §  3369. 

Presumption  as  to,  when  breach  can  be  relieved  by 
pecuniary  compensation,  §  3387. 

Realty,  of  oral  agreement  for  transfer  of  on  part  per- 
formance, §  1741. 

Reformed  contract,  of,  §  3402. 

Relief  against  parties  claiming  under  person  bound  to 
perform,    §    3395. 

Specific  real  property,  how  recovered,  §  3375. 

When  denied,  §§  3390-3392. 

When  may  be  had,  §  3384. 
SPECIFIC   RELIEF,  forfeiture,   §  3369. 

Given  in  no  other  cases  than  specified  in  code,  §  3274. 

How  given,  §  3367. 

Judgment  for  possession  or  title,  §  3375. 

Penalty  not  enforceable  by,  §  3369. 

Preventive  relief,   §   3368.     . 

Recovery  of  personal  property,  §§  3379,  3380. 

Specific"  real  property,  how  recovered,  §  3375. 

When  may  be  granted  in  general,  §  3366. 
SPEED  of  street  cars,  rate  of,  §  501. 
SPORT,  right  of  conducting  as  easement,  §  801. 
STAGE,  obligation  to  carry  baggage  on,  §  2180. 

See  Carriers. 
STALLION.    Lien  of  owner  of  stallion  used  for  propogar 

tion,  p.  738,  Stats. 
STAMP,    none   required   on   accident   insurance    contract, 

§  448.    . 
STATE,  carrier  may  give  preference  to,  §  2171. 

Islands  belong  to,  when,  §  1016. 

Preference  by  carrier  to,  §  2171. 

Property,  may  hold  as  private  proprietor,  §  669.  .; 

Property  of,  what  lands  are,  §   670. 
STATE  LAND  granted  for  use  of  railroads,  §§  474-478. 

Railroad  may  take  wood  and  earth  from,  §  476. 


STATUTE— STATUTE    OF    FRAUDS.  1011 

STATUTE,  act  done  under  authority  of,  not  a  nuisance, 
§   34S2. 

Code  continuation  of,   §   5. 

Construction  of  code  to  be  liberal,  §  4. 

Contemporaneous  construction  is  the  best,  §  3535. 

Injunction  not  granted  to  prevent  enforcement,  §  3423. 

Interpretation  giving  effect  preferi-ed,  §  3541. 

Interpretation  must  be  reasonable,  §  3542. 

Particular  expressions  qualify  general,  §  3534. 

Repeal  of,  by  code,   §  20. 

Retroactive,  code  is  not,  §  3. 

Revivor  of,  not  worked  by  code  repealing  other  stat- 
utes, §   20. 

Rights  created  by,  there  may  be  ownership  in,  §  655. 

Section,  meaning  of,   §  14. 
STATUTE  OF  FRAUDS,  agency,  contract  of,  §  2309. 

Agent,  agreement  employing,  §  1624. 

Assignment  for  creditors,   §§  3458,  3459. 

Auctioneer's  memorandum,  §§  1624,  1798. 

Broker,  agreement  employing,  §  1624. 

Contract   not   in    writing   through    fraud    enforceable, 
§   1623. 

Conveyance,  §  1091. 

Debt,  default  or  miscarriage  of  another,  agreement  to 
answer  for,   §   1624. 

Guaranty,   §§  1624,  2793,  2794. 

Guaranty  by  factor  need  not  be  written,   §  2794. 

In  general,   §   1624. 

Lease,   §  1624. 

Manufacture,  contract  to,  §  1740. 

Marriage,    §   1624. 

Marriage,  agreement  upon  consideration  of,  §  1624. 

Mortgage,  creation  of,  §  2922. 

Mortgage,  renewal  or  extension,  §  2922. 
•  •  Oral,    contract    may    be    enforced    unless    writing   r©» 
quired,  §  1622. 

Oral,  enforcing  against  fraudulent  party,  §  1623. 

Oral,  transfer  may  be  enforced  when,  §  1052. 

Oral,  what  contracts  may  be  enforced,  §  1622. 

Part  performance  of  oral  contract,  §  1741. 

Real  estate  broker,  §  1624. 

Realty,  agreement  relating  to,  §  1624. 


1012        STATUTE  OF  FRAUDS— STREET    RAILWAY,  ETC. 

Realty,   contract  for  sale,   §   1741.  ; 

Realty,  grant  of,  §  1091. 

Sales,   §§   1624,  1739. 

Ship,  transfer  of  interest  in,  §  1135. 

Specific  performance,  §  3338. 

Suretyshp,  §  1624. 

Trust,  transfer  of,   §  1135. 

Wine  sale,  §  3440. 

Writing  supersedes  oral  stipulations,  etc.,  §  1625. 

Year,  contract  not  to  be  performed  within,  §  1624. 
STEPFATHER,  rights  and  liabilities  respecting  stepchil- 
dren, §  209. 
STOCK  AND  STOCKHOLDER:     See  Corporation. 
STOPPAGE  IN  TRANSIT,  in  general,  §§  3076-3080. 
STORAGE:     See  Deposit;  Warehouseman. 

Defined,  §  1851. 

Degree  of  care  required,  §  1852. 

Carrier  may  place  freight  on,   §   2121. 

Compensation  for  fraction  of  week  or  month,  §  1853. 

How  terminated,  §§  1854,  1855. 

Sale  of  unclaimed  baggage  for,   §  1862. 

Finder  may  put  thing  on,  §  1868. 
STRANGER,  attornment  to,  §  1948. 

Grant  may  inure  to  benefit  of,  §  1085. 
See  Third  Person. 
STRATAGEM,  desertion  induced  by,  §  97. 
STREAM:     See  Waters, 
STREET.     Boundary,  street  as,   §  831. 

Consent  of  municipalities  to  use  of  by  railroad,  §  470. 

Owner  presumed  to  own  to  center,  §  831. 
STREET  RAILWAY:     See  Street  Railway  Corporations. 

Owned  by  natural  person,  law  governing,  §  511. 
STREET     RAILWAY     CORPORATION:     See     Carriers; 
Railroad  Corporation. 

Cars  to  be  modern,  etc.,  §  501. 

City  reserves  right  to  improve  streets,  etc.,  §  507. 

Code  sections,  in  general,  which  apply  to,  §  510. 

Completion  of  road,  act  authorizing,  p.  763. 

Crossings,  obstructions  in  making,  §  500. 

Crossing  track  of  another  railroad,  §  500. 


STREET    RAILWAY    CORPORATION— SUBAGENT.        1013 

Conditions  required  on  granting  right  of  way,  §  498. 

Electricity,  restrictions  imposed  in  granting  right  to 
use,  §  497. 

Electricity,  steam  road  permitted  to  use,  p.  172,  Stats. 

EHevated,   conditions,    §    498. 

Fare  in  cities  over  100,000,  act  limiting  rate  of,  p.  771. 

Franchise,  acts  relating  to  sale  of  and  governing  con- 
ditions of  sale,  pp.  753-762. 

Franchise,   limitation   of   time   within   which   may   be 
granted,  p.  773,  Stats. 

Franchise,  statute  validating  ordinance  granting,  p.  762. 

Franchise  proceedings  prior  to  the  granting  or  sale  of, 
§   497a. 

License  tax  on,   §   508. 

Mail  carriers  to  ride  free  on,  p.  773,  Stats. 

Municipal  regulations  respecting,  in  general,  §  503. 

Owned  by  natural  person,  §  511. 

Passengers:      See   Passenger   Carriers. 

Penalty  for  overcharging,  §  504. 

Rates  of  fare,  §  501. 

Rates  of  fare,  penalty  for  ignoring,  §  501. 

Rates  of  fare,  penalty  for  overcharging,   §§  504,  506. 

Right  of  way,  restrictions  on,  §  498. 

Tickets,  penalty  for  not  furnishing,  §  505. 

Tickets,  penalty  for  not  furnishing,  action  to  recover, 
evidence,   §   506. 

Tickets  to  be  furnished,  §  505. 

Time  allowed  for  completion  of  line,   §   502. 

Time  for  commencement  and  completion  of  line,  ex- 
tension of,  §  502. 

Track,  authority  to  lay  obtained  how,  §  497. 

Track,  for  grading  purposes,  §  509. 

Track  for  grading  purposes,  right  to  use  steam,  §  509. 

Track,  imposing  restrictions  in  grant  to  lay,  §  497. 

Tracks  to  be  laid  how,  §  498. 

Track,  two  lines,  right  of  to  use  same,  §  499. 
SUBAGENT,  factor,  of,  §  2368. 

Liability  of,    §   2022. 

Represents  principal,  §  2351. 

Unauthorized  appointment  of,  effect  of,  §  2350. 

When  may   be   appointed,    §  2349. 


1014  SUBPCENA— SUCCESSION. 

SUBPCENA,    officer    taking    acknowledgment    may    Issue, 

§  1201. 

SUBROGATION,  creditor,  by,  to  securities  held  by  surety, 

§  2854. 

Insurer,  of,  in  marine  insurance,  §  2745. 

Lienor,  inferior,  riglit  to,  §  2904. 

Redemptioner,   of,    §§    2903,    2904. 

Surety,  of,  §§  2848,  2849. 
SUBSCRIPTION  includes  mark,   §  14. 

Mark,  by,  two  witnesses  necessary,  §  14. 
SUBSEQUENTLY  ACQUIRED  TITLE  passes  by  operation 
of  law,  §  1106. 

Passes  by  will,  §  1312. 
SUBSTITUTE,  liability  of  employee  for,  §  1989. 
SUCCESSION,   advancements   constitute  part  of  distribu- 
tive share,   §  1395. 

Advancement,  death  of  heir  before   decedent,   §  1399. 

Advancement,  effect  of,  §  1309. 

Advancements,  value  of  determined  how,   §  1398. 

Advancements,  what  are,  §  1397. 

Advancement,  when  too  much  or  too  little,  §  1396. 

After-born  child  not  provided  for  in  will,  §  1306. 

Aliens  may  inherit  how  and  when,  §  1404. 

Alien,   non-resident,   failure   to   claim,   proceedings   in 
case  of,  §§  1405,  1406. 

Alien,  non-resident,  interest  escheats  when,   §  1406. 

Alien,    non-resident,     property     escheats     subject     to 
charges,    §  1407. 

Alien,  non-resident,  taking  by,  when  to  assert  claim, 
§§  672,   1404. 

A  mode  of  acquiring  property,  §  1000. 

Annulled  marriage,  children  of,  §  84. 

Bastards,  by,  §  1387. 

Bastard,  to,  §  1388. 

Bona  fide  purchaser  from  one  claiming  by,  effect  of 
will,  §  1364. 

Child  after  born,  to  be  paid  out  of  what  part  of  es- 
tate,  §  1308. 

Child  born  after  execution  of  will,  §  1306. 

Child  bom  after  death  of  testator,  §§  698,  1298,  1306, 
1339,  1403. 


SUCCESSION— SUNDAY.  1015 

Child  en  ventre  sa  mere,  §  1339. 

Children  unprovided  for  in  will,  §  1307. 

Community  pi-operty  on  death  of  husband,  §  1402. 

Community  property  on  death  of  wife,  §  1401. 

Consanguinity  computed  how,   §§  1389-1394. 

Conssanguinity,  direct  and  collateral,   §§  1390-1393. 

Consanguinity,  half  blood,   §  1394. 

Conveyance  by   heir   good   unless  will   proved   within 
four   years,    §  1364. 

Defined,  §  1383. 

Degrees  of  kindred,  computation  of,   §§  1389-1393. 

Escheated  property  subject  to  charges,  §§  1406,  1407. 

Escheats,   §  1386. 

Escheat,  when  occurs,  §  1406. 

Future  interests  pass  by,  §  699. 

General   rules  of,   §  1386. 

Half  blood,  kindred  of,  §  1394. 

Husband  and  wife  from  each  other,  §§  1400,  1402. 

Illegitimate,  by,  §*1387. 

Illegitimate,  to,  §  1388. 

Intestate,  to  estate  of,  §  1384. 

Intestate's  estate,  rules  of  descent  of,   §  1386. 

Legitimated  children,  by,  §  1387. 

Liability  of  successor  for  decedent's  obligations,  §  1408. 

Liability    of    successors    on    covenants    of    decedent, 
§  1115. 

Life  insurance  may  pass  by,  §  2764. 

Not  claimed,  sale  of  property  and  disposition  of  pro- 
ceeds,  §§  1405,  1406. 

Personal  and  real  property  pass  by,  §  1384. 

Posthumous  child,  §§  698,  1306,  1339,  1403. 

Pretermitted  child,  by,  §  1307. 

Representation,  by,  when  takes  place,  §  1403. 

Rules  of,  in  general,  §  1386. 

Successor  liable  for   decedent's  obligations,   §  1408. 

Will,  children  unprovided  for  by,  to  succeed,  §§  1306, 
1307. 

Words  of,  not  necessary  to  pass  fee,  §  1072. 
SUGGESTIONS,  false,  when  fraudulent,  §§  1572,  1710. 
SUNDAY,  a  holiday,  §  7. 

Holiday  falling  on,  §  8. 


1016  SUPERFLUITY— SURETYSHIP. 

SUPERFLUITY,  does  not  vitiate,   §  3537. 
SUPERHUMAN     CAUSE,     carrier    not    responsible    for, 
§  2194. 

Excuses   performance,   §  1511. 

No  one  responsible  for,  §  3526. 
SUPERIOR  JUDGE,  may  consent  to  apprenticeship  when, 
§  265. 

May   take   acknowledgment,    §  1180. 
SUPERVISORS,  action  for  parental  abuse,  §  203. 

Apprenticeship,  consent  to,  §  265. 

Apprentices,  may  bind  out,  §  268. 

Apprenticeship,   presiding   officer,   power   to  bind   to, 
§  269. 

Elevated  or  underground  railways,  may  grant  franchise 
for,  §  492. 

Franchise,   act   limiting   time    within   which   may   be 
granted,  p.  773. 

Franchise,  acts  relating  to  sale  ©f  and  governing  con- 
ditions of  sale,  pp.  753-762. 

Franchise,  act  validating  ordinance   granting,   p.   763. 

Franchise   for   underground   or   elevated   road,    condi- 
tions and  terms  of,  §  492. 

Franchise  for  elevated  or  underground  road,  majority 
of  frontage  to  sign  petition,  §  492. 

Provision  for  support  of  orphan  out  of  property  of 
intestate  parent,   §  205. 

Rates  for  water  sold  for  irrigation,  may  fix,  p.  786, 
Stats. 
SUPPORT  TO  LAND,  right  of  more  than  natural,  as  ease- 
ment, §  801. 

Right  to  lateral  and  subjacent,  §  832. 
SUPREME  JUDGE,  may  take  acknowledgment,   §  1180. 
SURETYSHIP:     See  Guaranty;  Indemnity. 

Apparent  principal  may  show  himself  surety,  §  2832. 

Contribution  from   co-surety,   §  2848. 

Contribution,  release  as  affecting,   §  1543. 

Creditor  entitled  to  securities  held  by  surety,  §  2854. 

Defined,  §  2831. 

Exoneration  of  surety,  what  acts  effect,  §§  2839,  2840^- 
2845. 

Guarantor,  surety  has  rights  of,   §  2844. 


SURETYSHIP— TAX.  1017 

Interpretation,   general   rules   of,    §  2837. 

Interpretation,  strict,  §  2836. 

Judgment    against    surety    does    not    alter    relation, 
§  2838. 

Letters  of  credit,  §§  2860-2865. 

liability  of  surety,  limit  of,  §  2836. 

Not  liable  beyond  express  terms  of  contract,   §  2836. 

Penalty,  liability  where  contract  imposes,  §  2836. 

Principal   bound   to   reimburse,    §  2847. 

Principal's  property  to  be  taken  first,   §  2850. 

Release  of  surety,  in  general,   §  2840. 

Release  of  surety  by  performance  or  offer  of,  §  2839. 

Reimbursement  of  surety,  §  2847. 

Securities   held   by   creditor   or   co-surety,    surety   en- 
titled to,    §  2849. 

Statute  of  frauds,  §  1624. 

Subrogation  of  creditor,  §  2854. 

Subrogation  of  surety,  §§  2848,  2849. 

Surety   defined,   §  2831. 

Surety  entitled  to  securities  held  by  creditor,  §  2849. 

Surety's  liability,  limit  of,  §  2836. 

Surety  may  compel  principal  to  perform,   §  2846. 

Surety  may  require  creditor  to  proceed  against  prin- 
cipal,  §  2845. 

Surety,  person  indemnifying  is  a,  when,  §  2779. 
See  Guaranty;    Indemnity. 
SURPRISE,   contract  made  by,  not  specifically   enforced, 

§  3391. 
SURVEY  of  wagon  road  to  be  filed,  etc.,  §  513. 
SURVEYOR-GENERAL,  selection  of  right  of  way  by  cor- 
porations sent  to,   §  478. 
SURVIVORSHIP  between  co-trustees,  §  2288. 

Chose  in  action,  survival  of,  §  954. 
TAIL.     Estates  tail  abolished,  §  763. 

TAX,     covenant    for   payment   of    taxes   runs   with   land, 
§  1463. 

Incumbrance  includes,  §  1114. 

Land  and  building  corporations,   of,   §  648^. 

License,  on  street  railways,  §  508. 

Life  tenant's  duty  to  pay,  §  840. 

Statute  imposing  on  issue  of  certificates  of  stock  re- 
pealed, p.  774,  Stats. 


1018  TECHNICAL    WORDS— TENANTS    IN    COMMON. 

TECHNICAL  WORDS,  how  construed,   §§  13,  1327,  1645. 

Not  necessary  in  will,  §  1328. 
TELEGRAPH    CORPORATION,    articles    of,    to    set    forth 

what,   §  291. 
Articles,  prerequisites  to  filing,  §  294. 
Care  required  in  transmission  of  messages,   §  2162. 
Common  carrier,  telegraph  company  is  not,  §  2168. 
Delivery,  duty  as  to,  §  2161. 
Delivery,   within   what   distance   to   be   made   without 

compensation,   §  2161. 
Franchise,  sale  or  lease  of,  §  540. 
Franchise   for  telegraph   between  Asia   and   America, 

p.  774,  Stats. 
Injury   to,   liability,    §    537. 

Liability  for  delay  in  or  refusal  of  message,  §  2209. 
May  dispose  of  what  rights,   §  540. 
Message,  compensation  for  delivery  of,   §  2161. 
Messages,   compensation   for   delivery   over   one   mile, 

§  2161. 
Messages,   damages  for  not  accepting,   §  3315. 
Messages,  liability  for  delay  or  refusal,  §  2209. 
Messages,  obligations  as  to  delivery  of,   §  2161. 
Messages,  order  of  transmission,   §§  2207,  2208. 
Messages,  telegraph,  carriers  of,  liability  of,  §§  2161, 

2168. 
Penalty  for  malicious  injury  to,  §  538. 
Poles,  etc.,  right  to  erect,  §  536. 

Right  of  way  along  waters,  roads  and  highways,  §  536. 
Subaqueous  cable,  damages  for  injury  to,  §§  537,  539. 
Subaqueous,  monument  to  show  location,  §  539. 
Subaqueous,  notice  of  location,  §  539. 
Subscription,    amount    of,    as    prerequisite    to    filing 

articles,  §§  293,  294. 
Ten   per   cent   of   amount   subscribed   to   be   paid   in, 

§  294. 
Transfer  or  lease  of  property,  §  540. 
Vessel  injuring  cable,   §  537. 
TELEPHONE    CORPORATION,    care    required    in    trans- 
mission of  message,   §  2162. 
Liability  for  delay  or  refusal,   §  2209. 
TENANTS   IN   COMMON,  interests  created  are  tenancies 

in  common,  when,  §  686. 


TENANTS     IN     COMMON— THIRD     PERSON.  1019 

Interest  in  common  what,  §  685. 

Notice,   re-entry  after  termination  of  tenancy,   §  790. 
Rights  in  occupancy  and  use  of  property,  §§  819,  820. 
Spouses  as,  §  161. 
Tenancy,  how  terminated,   §  789. 

Will,  devisees  ,or  legatees  take  as  owners  in  common, 
when,    §  1350. 

TENANT   FOR   YEARS,   rights  in  occupancy  and  use  of 

property,    §§  819,    820. 
TENDER  and  deposit  extinguish  obligation,  §  1500. 

Interest  stopped  by,  §  1504. 

Of  performance   of  an  obligation,   §§  1485-1505. 
TENSE  of  words  in  code,  §  14. 
TESTIFY,  defined,  §  14. 

Includes  what,  §  14. 
THING  IN  ACTION:     See  Chose  in  Action. 
THIRD  PERSON,  act  of,  not  to  prejudice,  §  3520. 

Agent  must  deliver  to,  when,    §  2344. 

Agent's  responsibility  to,   §  2343. 

Consideration,  trust  where  paid  by,   §  853. 

Contracts  for  benefit  of,  §  1559. 

Delivery  in  escrow  to,  §  1057. 

Estates  for  life  of,  §  766. 

Grant  may  inure  to  benefit  of,  §  1085. 

Marine  insurance,  information  of  belief  of,  §  2670. 

May  enforce  contract,  §  1559. 

Necessaries  furnished  child  by,   §§  208,  209. 

Necessaries  furnished  wife  by,  §  174. 

Partner's  liability  to,   §  2442. 

Pledge  may  be  for  security  of  obligation  of,   §  2992. 

Ratification  of  agent's  act  not  to  prejudice,   §  2313. 

Reformation  of  contract  not  to  prejudice,  §  3399. 

Remainder  on  estates  for  life  of,   §§  775,  776. 

Specific   performance   of   contract  to   procure   act  of, 
§  3390. 

Trustee,  voluntary,   when  is,   §  2243. 

Trust    property,    when    must    see    to    application    of, 
§  2244. 

Trusts  for  benefit  of,   §  2250. 

Who  liable  as  partner  to,  §  2444. 

Who  must  suffer  by  act  of,  §  3543. 


1020  THREAT— TIME, 

THREAT,    contract   obtained    through,    voidable,    §§  1567, 
1689. 

Desertion  caused  by,  divorce,  §  98. 

Menace,  defined,  §  1570. 

Partner,   by,  to  obtain  advantage,   §  2411. 

Trustee,  by,  to  obtain  advantage,  ,§  2228. 

Will  procured  by,  void,  §  1272. 
THRESHING  MACHINE,  liens  of  laborers  on,  p.  743,  Stats. 
TICKET:     See  Passengers. 
TIDE   LANDS,  state  is  owner  of,  §  670. 
TIDE-WATER,  owner  of  land  bounded  by,  §  830. 
TIMBER,  injuries  to,  damages  for,  §  3346. 
TIME,  abandonment  in  marine  insurance,  time  of  making, 
§  2719. 

Adoption  of  by-laws,  §  301. 

Alien,  claim  to  take  by  succession,  §  672. 

Alien    must    appear   and    claim    property    within    five 
years,  §  672. 

Appraisers  of  homestead,  time  to  file  report,   §  1252. 

Appropriation    of    water,    time    to    commence    works, 
§§  1416,    1420. 

Articles  of  incorporation,  time  to  file,   §  299. 

Bonds  of  assignee  for  creditors,  time  to  file,   §  3467. 

Creation  of  interest,   §  749. 
■  Code  takes  effect  when,  §  2. 

Computation  of,  §  10. 

Divorce,  commencing  actions  for,   §  127. 

Does  not  confirm  void  act,   §  3539. 

Entire,  of  servant  belongs  to  master,  §  2013. 

Essence,  not  of  unless  expressly  declared,  §  1492. 

Grant,  of  delivery,  presumption,   §  1055. 

Inventory   on   assignment  for   creditors,   time   to   file, 
§  3461. 

Lapse  of  defeats   divorce,   §  111. 

Marriage,  of  commencing  action  for  nullity  of,  §  83. 

Minority,   computing  period  of,   §  26. 

Nuncupative  will,  to  be  reduced  to  writing  in  thirty 
days,    §  1290. 

Obligation,  time  of  performance,   §§  1490,  1491. 

Of  enjoyment  of  property,   classification  of  interests 
as  to,   §  688. 


TIME— TITLE.  1021 

Of  enjoyment  of  property,  fixing,  §  707. 

Notice  of  dishonor,    §§  3147,    3148. 

Notice  of  dishonor  by  indorser,  §  3150. 

Notice    to    creditors    on     assignment     by     insolvent, 

§§  3449,   3468. 
Performance   of  contract,    §  1657. 
Presumptions    arising   from    lapse    of,    how    rebutted, 

§  126. 
Probate  of  nuncupative  will,  §  1291. 
Publication  of  sale  for  delinquent  assessment,   §  339. 
Railroad  may  regulate  time  of  trains,  §  465. 
Redemption  from  sale  of  franchise  under  execution, 

§  392. 
Representation  ir  insurance  refers  to  what,  §  2577. 
Right  to  rescind  policy,  time  to  exercise,  §  2583. 
Street  railway,  time  to  commence  and  complete  road, 

§  502. 
Unreasonable   lapse   of  defined,    §  125. 
Will,  words  in,  relate  to  what,  §  1336. 
TITLE,   accession,  by,   §  1013. 

Acquired  subsequently  to  conveyance  passes  by  oper- 
ation  of   law,    §  1106. 
Buyer  acquires  better  than  seller  had,  §  1142. 
Damages  for  breach  of  warranty  of  title  of  personalty, 

§  3312. 
Devise,  by,   §  1311. 
Executory  agreement  of  sale,   §  1141. 
Fee  simple,  when  presumed  to  pass,  §  1105. 
Freight,  to,  by  transfer  of  bill  of  lading,  §§  2127,  2128. 
Highway,   to,   passes   by   transfer,    §  1112. 
Instruments   evidencing,    declared   by   judgment,   how 

proved  for  record,   §§  1159,  1204. 
Inventory  of  wife's  property  as  notice  of,  §  166. 
Judgment  for  possession  or,  §  3375. 
Lien  does  not  transfer,  §  2888. 
Loaned  property,  of,   §§  1885,  1904. 
Modes  by  which  property  acquired,   §  1000. 
■  Occupancy,   by,    §  1006. 
Personal  property,  to,  what  passes  by  transfer,  §  1140. 
Redelivery  or  cancellation  of  grant  does  not  revest, 

§  1058. 
Specific  devise  or  legacy,  by,   §  13C*3. 


1022  TITLE— TORT. 

Subsequently   acquired    inures    to    mortgagee,    §  2930. 

Subsequently    acquired,    passes    by    operation   of   law, 
§  1106. 

Subsequently  acquired,  passes  by  will,   §  1312. 

Thing  in  performance,  title  to  when  passes  to  cred- 
itor,   §  1502. 

Transfer,  what  passes  by,  §§  1083,  1105. 

Trust  property,  title  of  grantor  of,  §  865. 

Warranty  of,  to  personal  property,   §  1765. 

Warranty  of,  to  personal  property,  by  agent,   §  2323. 

What  title  passes  by  transfer,  §§  1083,  1105. 
TrT.LE   DEED,    §  994. 

Ownership   of,    §  994. 
TITLE    INSURANCE    COMPANY,    dividends,    amounts    to 
be   reserved   before  making,   §  432. 

Dividends  declared  of  what,   §  432. 

May   invest  funds   in   plant,    §  427. 

Surplus    fund    and    impairment    and    restoration    of, 
§  432. 
TOLL  and  toll-gates,   §§513-519. 

Butte   County,    tolls   in,    §  514. 

Del  Norte  County,  tolls  in,  §  514. 

Franchise,  levy  on  and  sale  under  execution,  §  388. 

Gatherer  not  to  detain  person  unnecessarily,  §  518. 

Humboldt  County,  tolls  in,   §  514. 

Klamath  County,  tolls  in,  §  514. 

Natural  person  may  own  toll  road,  §  523. 

Natural    person   owning   toll   road,   rights   and   liabili- 
ties, §  523. 

Not  to  be  charged  on  public  highway,  §  515. 

Penalty  for  avoiding,  §  519. 

Penalty  for  taking  unlawful  or  excessive,  §§  514,518. 

Plumas  County,  tolls  in,  §  514. 

Rates  to  be  posted  over  gate,  §  516. 

Right  of  taking  as  servitude,  §  802. 

Sierra  County,  tolls  in,  §  514. 

Toll  gatherer  may  detain  person  until  paid,  §  517. 

Wagon  road  corporations,   by,   §  514. 
TORT,  agent's,  principal's  liability  for,  §§  2338,  2339. 

Carrier  cannot  exonerate  from  liability  for,  §  2175. 

Damages  for,  measure  of,  general  rule,   §  3333. 


TORT— TRANSFER.  1023 

Damages  for  wrongs,   §§  3333-3341. 

Damages  recoverable  for  tortious  acts,   §  3281. 

Deceit,    §§  1709-1711.- 

Duty   to   abstain  from   injury   to   person  or   property, 
§  1708. 

Indemnity   against,    §§  2773,   2774. 

Infant's  and  lunatic's,  §  41. 

In  general,   §  1708. 

Restoration  of  things  wrongfully  acquired,  §  1712. 

Willful  acts,  negligence,   etc.,  liability  for,   §  1714. 
See  Wrongs. 
TOWN   LOT  not  embraced  in  state  lands  granted  to  rail- 
roads,  §  475. 
TRADE,  contracts  in  restraint  of,  §§  1673-1675. 
TRADEMARK,    ownership,    subject   of,    §  655. 

Property  is,   §  655. 

Sale     of     property     to     which     attached,     warranty, 
§§  1772,  1773. 

Statute  for  protection  of  owners  of  bottles,  boxes,  si- 
phons, etc.,  p.  775. 

What  may  be  appropriated,  §  991. 
TRANSFER:      See  Assignment;    Conveyance;    Sale. 

Bill  of  lading,  of,  §  2128. 

Bill  of  sale,   §  1053. 

Bona  fide  purchaser,  title  of,  §  1142. 

Called  what,   §  1053. 

Complete  when,   §  1140. 

Covenants,   of,    §§  1460-1467. 

Defined,  §§  1040,  1053. 

Delivery,  conditional,  cannot  be  to  grantee,  §  1056. 

Delivery,  date  of,  presumption  as  to,   §  1055. 

Delivery  necessary,   §  1054. 

Delivery  to  grantee  must  be  absolute,  §  1056. 

Denominated   what,    §  1053. 

Effect  of,   §§  10S3-1085. 

Executory   agreement   for,   title   passes   when,   §  1141. 

Fraudulent,  respecting  realty,   §§  1227-1231. 

Fraudulent:      See  Fraudulent  Conveyance. 

Future  interests  pass  by,  §  699. 

Gift:      See  Gift. 

Good-will,  of,  §  993. 


1024  TRANSFER— TRE  AS  URE-TROVB. 

Grant  defined,  §  1053. 

Grant  includes  whatever  is  essential  to  use,   §  3522. 

Incidents  follow  thing  transferred,  §  1084. 
■     Insured  thing,  of,  effect  of,  §§  2553-2557. 

Life  insurance  policy,  of,   §§  2764,  2765. 

Mortgage,  when  transfer  deemed  a,  §  2924. 

Non-negotiable   instrument,  of,    §  1459. 

Obligations,   burden,   transfer  of,    §  1457. 

Obligation,  of  rights  arising  out  of,  §  1458. 

Oral,  when  may  be,  §  1052. 

Possibility,  of,   §  1045. 

Property  may  be  acquired  by,  §  1000. 

Property  susceptible  of,   §  1044. 

Realty  of:      See  Conveyance. 

Recording:      See  Recording. 

Re-entry,  right  of,  may  be  transferred,  §  1046. 

Rents,   remainders  and  reversions,   of,   §  1111. 

Ship,  of  interest  in,  statute  of  frauds,  §  1135. 

Statute  of  frauds,    §§  1135,   1624. 

Stranger,  grant  may  inure  to,   §  1085. 

Title  passes  when,   §  1140. 

Title   passes    when,    in   executory   contract   for   sale, 
§  1141. 

Title,  what  passes,   §  1083. 

Title,  when  buyer  acquires  better  than  seller  had,  | 
1142. 

Unlawful,    §§  1227-1231. 

Voluntary,  defined,   §  1040. 

Voluntary,    consideration    not    necessary,    §  1040. 

Warranty   of   written   instrument   sold,    §  1774. 

What  called,  §  1053. 

What  may  be   transferred,   §  1044'. 

When  complete,  §  1140. 

Will,  effect  on,   §  1302. 

See  Assignment;    Conveyance;    Sale. 
TRANSIT,  mortgaged  property  in,  where  located,   §  2960. 

Stoppage  in,   §§  3076-3080. 
TRANSPORTATION,    commissioners   of,    act   relating   to, 

p.  766. 
TREASURE-TROVE:      See  Finder. 


TREE— TRUST.  1025 

TREE,   injuries   to,   damages  for,    §  3346. 
Standing  on  line,   §  834. 

Wholly  on  land  of  one,  §  833. 
TRESPASS,  accession  to  property  by  willful  trespasser, 
§  1031. 
'     Personal  property  acquired  by,   §  1031. 

On  personal  property,  liability,  §  1033. 

Timber,  cutting  or  injuring,   damages,   §  3346. 

"Wagon  road   corporation,   on,   penalty  for,   §  520. 
TRIFLE,  law  disregards,  §  3533. 

TROVER,  conversion,  damages  for,  §§  3336,  3337,  3338. 
TRUST,  absolute  grant,  when  deemed  to  be,  §  869. 

Adverse  interest,  trustee  not  to  have,  except,  §  2230. 

Adverse  interest,  trustee  to  disclose,   §  2233. 

Adverse  trust  not  to  be  assumed  by  trustee,  §  2232. 

Agent,   trustee's    powers    as,    §  2267. 

Alienation,   suspension   by   trust,    §  771. 

Application  of  payment  or  property,  when  one  must 
see  to,    §  2244. 

Author  of,  may  devise  and  transfer  property,   §  864. 

Beneficiary   defined,    §  2218. 

Beneficiary  may  be  restrained  from  disposing  of  prop- 
erty,   §  867. 

Beneficiary   may   enforce   performance   of   trust,  §  863. 

Beneficiary  may  take  advantage  of  at  any  time  prior 
to  rescission,   §  2251. 

Beneficiary  takes  no  estate  or  interest,   §  863. 

Bona  fide  purchaser,  grant  when  deemed  absolute  In 
favor  of,   §  869. 

Breach  of  trust,  measure  of  liability  for,  §§  2237,  2238. 

Care  required  in  executing  trust,   §  2259. 

Cemetery  may  hold  property  in,  §§  612,  616. 

Charitable,  restrictions  on  power  of  devise,   §  1313. 

Code  prescribes  those  only  which  may  exist,  §  847. 

Compensation  of  trustee,  §  2274. 

Confidential   relations,   trust   from,    §  2219. 
•      Consent,  mutual,  creates,  §  2251. 

Convey  realty,  to,  §  857. 

Cotrustees,  how  far  liable  for  each  other,  §  2239. 

Cotrustees  must  all  act,  §  2268. 

Cotrustees,    survivorship   between,    §  2288. 


1026  TRUST, 

Court  is  trustor,  when,   §  2252. 

Created  only  by  writing  or  operation  of  law,  §  852. 

Creation  by  mutual  consent,  §  2251. 

Creditors,  surplus  liable  to  when,  §  859. 

Damages  for  breach  of,   §§  2237,   2238. 

Damages  for  willful  holding  over  by  trustee,   §  3335. 

Declaration  of,  expresses  its  nature,  etc.,  §  2253. 

Declaration  of,  in  writing  merges  prior  declarations, 

§  2254. 
Declaration  of,  trustee  must  obey,   §  2258. 
Declarations  of  trustor  before  acceptance  as  part  of, 

§  2254. 
Devisee  of  trust  property,  title  of,  §  865. 
Directions   of   trustor   except  as   modified   to   be   fol- 
lowed, §  2258. 
Express,  for  what  purposes  created,   §  857. 
Express,  interest  remaining  in  grantor  of,   §  866. 
Express,  to  receive  rents  and  profits,  and  accumulate, 

§  857. 
Express,  to  sell,  lease,  or  mortgage  realty,  §  857. 
Express,  trustees  to  have  whole  estate,    §  863. 
Express,    when    deemed    absolute    grant    in    favor    of 

purchasers  from  trustees,  §  869. 
Express,  terminated  when,   §  871. 
Extinguished  how,   §§  871,  2279. 
Fraud,  trustee  guilty  of,  when,   §  2234. 
Grantor  of,  interest  remaining  in,   §  866. 
Grantor  of  trust  property,  title  of,   §  865. 
Implied,  not  to  prejudice  purchaser  or  incumbrancer, 

§  856. 
Indemnification  of  trustee,   §  2273. 
Injunction  in  cases  respecting,    §  3422. 
Insanity   discharges   trustee,    §  2282. 
Insurance  by  trustee,  form  of  policy,  §  2589. 
Interest,    compound,    on    omission    to    invest    funds, 

§  2262. 
Interest  on  omission  to  invest  funds,   §  2262. 
Interest,  trustee's  liability  to  beneficiary  for,   §  2237. 
Investment  of  trust  funds,  §  2261. 
Involuntary   arising  from   negligence,   fraud,   mistake, 

etc.,    §  2224. 
Involuntary,  by  wrongful  detention,  §  2223. 


TRUST.  1027 

Involuntary  defined,  §  2217. 

Involuntary  trustee,  purchaser  with  notice  is,  §  2243. 

Involuntary  trustee,  rights  of,  §  2275. 

Involuntary  trustee,  when  third  person  is,  §  2243. 

Kinds  of,   §  2215. 

Lease,  to,  §  857. 

Livestock,  combinations  to  obstruct  sale  of,  prevented, 
p.  665,  Stats. 

Mingling  trust  property,  liability,  §  2236. 

Mortgage,  to,  §  857. 

Officer  is  trustor  when,   §  2252. 

Parties  to,   §  2218. 

Powers  vested  in  several,  execution  of,  §  860. 

Presumption  against  trustee  on  dealing  with  bene- 
ficiary,  §  2235. 

Property,  author  may  devise  or  transfer,  §  864. 

Purchase  by  trustee  of  claims  against  trust  fund, 
§  2263. 

Purpose  for  which  may  be  created,  §  2220. 

Recording  transfer  in,   §  1164. 

Rents  and   profits,  to  receive,   §  857. 

Revocation,  right  of,   §  2280. 

Resulting  from   negligence,   fraud,   etc.,   §  2224. 

Resulting,  not  to  prejudice  purchaser  or  incumbrancer, 
§  856. 

Resulting,   presumed   when,    §  853. 

Stockholder's  liability,  trust  funds  whether  can  be  held 
for,   §  322. 

Successor,  duty  of  trustee  as  to  appointment  of,  §  2260. 

Superior  court  as  trustee,   §  2289. 

Surplus  liable  to  creditors,  §  859. 

Survivorship   between   cotrustees,    §  2288. 

Suspension  of  power  to  alienate  the  subject  of,  §  77L 

Termination  of  estate  of  trustee,   §  871. 

Third  persons,  when  involuntary  trustees,  §  2243. 

Third  person,  when  must  see  to  application  of  trust 
property,   §  2244. 

Title  of  grantee  or  devisee  of  trust  property,  §  865. 

Title  remaining  in  grantor,   §  866. 

Trjtnsactions  forbidden  to   trustee,    §  2230. 

Transfer  of  interest  in  to  be  in  writing,  §  1135. 

Trustee,  act  authorizing  executor  to  act  as,  p.  702. 


1028  TRUST. 

Trustees,  all  must  act,   §  2268. 

Trustee  appointed  by  court  or  public  officer,  §  2252. 

Trustee,  authority  of,  §§  867,  2267. 

Trustee,   care  required  of,   §  2259. 

Trustee's   compensation,    §  2274. 

Trustee,  compensation,  direction  as  to  in  declaration, 
§  2274. 

Trustee,  defined,  §  2218. 

Trustee's  estate  ceases  when,  §  871. 

Trustee's  estate,  termination  of,   §  871. 

Trustee  discharged  how,   §  2282. 

Trustee's   discretionary   powers,   control   over,   g  2269. 

Trustee,  indemnification  of  for  expenses,   §  2273. 
''Trustee,  involuntary,  rights  of,   §  2275. 

Trustee,  involuntary,  who  is,  §  2223. 

Trustee's    liability    for    breach    of    trust,    measure    of, 
>  ''  §§  2237,    2238. 

Trustee  must  obey  declaration  of,   §  2258. 

Trustee  not  to  assume  trust  adverse  to  beneficiary, 
§  2232. 

Trustee  not  to  influence  to  his  advantage,  §  2231. 

Trustee  not  to  use  property  for  own  profit,  §  2229. 

Trustee's  obligation  to  good  faith,   §  2228. 

Trustee's  office  vacated  by  death  or  discharge,  §  2281. 

Trustee's  powers  as  agent,   §  2267. 

Trustee,   presumption   against  on   dealing   with   bene- 
■'-  ficiary,    §  2235. 

Trustee's   purchase   of  claims   against   trust  funds,   | 
•  2263. 

Trustee,   removal  of  by  court,   §  2283. 

Trustee,  resignation  of,  §  2283. 

Trustee,  sale  by  in  contravention  of,  void,  §  870. 
'•'Trustee,  superior  court  as,  §  2289. 

Trustee,   superior   court   when   to   appoint   and   direct 
execution  of  trust,   §  2289. 
'  ''Trustee  takes   whole   estate,    §  863. 

Trustee  to  disclose  adverse  interest,   §  2233. 

Trustee  to  have  no   adverse  interest,   except,   §  2230. 

Trustees,  to  whom  code  applies,   §  2250. 

Trustee,   transactions   forbidden,    §  2230. 

Trustee,  what  constitutes  one  a,   §  2219.  ■ 

Trustor,  court  is,  when  appoints  trustee,   § .  2252. 


TRUST— UNLAWFUL.  1029 

Trustor   defined,    §  2218. 

Vacancy  in  trusteeship  may  be  by  death  or  discharge, 
§  2281. 

Vacant  trusteeship  filled  by  court,  when,  §§  2287,  2289. 

Voluntary,  defined,  §  2216. 

Voluntary,  how  created  as  to  trustor,  §  2221. 

Voluntary,  how  created  as  to  trustee,  §  2222. 

What  can  only  exfst,  §  847. 

When   deemed   absolute   grant  in  favor  of   bona  fide 
purchasers,  §  869. 

Wrongful  act,  trust  arising  from,  §  2224. 
TRUST  COMPANIES,  dissolution  and  winding  up  of,  p.  676, 
'  Stats. 

TRUSTEES:      See  Trust. 
TRUST  DEED,  power  to  sell  in,  passes  to  assignee,  §  858. 

Power  to  sell  on,  assignee  may  exercise,  §  858. 
TURNPIKE  CORPORATION:    See  Wagon  Road  Corpora- 
tion. 
TYPEWRITING,   writing  includes,    §  14. 
UNCLAIMED  DEPOSITS,  statement  of  to  be  published  by 

banks,  pp.   674,   675,   Stats. 
UNDERGROUND     RAILWAY,   franchise   for,   majority   of 
frontage  to  sign  petition,  §  492. 

Franchise  for,  terms  and  conditions,  §  492. 

Franchise  may  be  granted  for  by  supervisors,  §  492. 
UNDERTAKING:    See  Guaranty;  Indemnity;   Suretyship. 
UNDUE  INFLUENCE,  consent  obtained  by,  §  1567. 

Contract  obtained  through,  §§  1567,  1689. 

Defined,  §  1575. 

Presumption  of,  against  trustee,  §  2235. 

Rescission  for,  §  1689. 

Thing  gained  by,  held  in  trust,  §  2224. 

Trust  arising  from,  §  2224. 

Wills  procured  or  revoked  through,  §  1272. 
UNINCORPORATED  ASSOCIATIONS:    See  Associations; 

Benefit  Societies;   Protective  Associations. 
UNITED  STATES,  carrier  may  give  preference  to,  §  2171. 
UNIVERSITY:    See  College. 
UNLAWFUL  alternative  in  contract,  effect  of,  §  1451. 

Condition  in  instrument  renders  void,  §  709.  -^ 


1030  UNLAWFUL— WAGON  ROAD  CORPORATION, 

Condition  in  obligation  void,  §  1441. 

Contracts:    See  Contracts. 

Transfers:    See  Transfers. 
UNLAWFUL  TRANSFERS:    See  Fraudulent  Conveyances. 
UNRECORDED  INSTRUMENT  valid  between  parties  and 

those  with  notice,  §  1217. 
USAGE,  agent  to  conform  to,  §  2349. 

Employee  to  conform  to,  §  1982. 

Meaning  of  words  fixed  by,  §  1644. 
USE  AND  OCCUPATION.    Wrongful  occupation  Of  realty, 

damages  for,  §  3334. 
USES  AND  TRUSTS:    See  Charitable  Uses;  Trusts. 

Uses,  none  exist  except  those  specified  in  code,  §  847. 
VALUE,  how  estimated,  §§  3353-3355. 
VENDEE'S   LIEN,   §  3050. 
VENDOR  AND  VENDEE:    See  Conveyance. 
VENDOR'S   LIEN,  §§  3046-3049. 

Homestead  liability  for,  §  1241. 
VESSEL:    See  Shipping. 
VESTED,  future  interest,  when,  §  694. 

Rights  not  affected  by  code,  §  6. 
VIGILANT,  preference  given  to  the,  §  3527. 
VOLUNTARY     CONVEYANCE,    consideration    not    neces- 
sary, §  1040. 

Defined,  §  1040. 

Validity  of,  §§  1040,  3442. 

See  Fraudulent  Conveyance. 
WAGERING  insurance,  §  2558. 
WAGES:     See  Master  and  Servant;    Shipping. 

For  services  without  employment,  §  2078. 

Minor,  of,  §,  212. 

Personal  representative  of  mate  or  seamen  entitled  to, 
§  2062. 

Wife's  earnings,  §§  168,  169. 
WAGON   ROAD  CORPORATION,  articles  of,  to  set  forth 
what,  §  291. 

Bridges  and  ferries,  §  514. 

Crossings,  §  513. 


WAGON  ROAP   CORPORATION— WAIVER.  1031 

iilxpense  of  opening  and  changing  highways,  §  513. 

Franchise,  forfeiture  ot,  §§  514,  516. 

Map  and  survey,  approval  of  and  rights  under,  §  513. 

Map  of  route  to  be  filed,  §  513. 

Mortgage  of  property,  §  522. 

Mortgage,  validity  of,  §  522. 

Natural  person  may  own  road,   §  523. 

Natural  person  owning,  rights  and  liabilities,  §  523. 

Opening  highway  taken,  §  513. 

Penalty  for  charging  unauthorized  tolls,   §  514. 

Penalty  for  trespass  on  property  of,  §  520. 

Posting  date  of  franchise,  rates  of  toll,  etc.,  §  516. 

Revenue,  to  be  how  appropriated,  §  521. 

Road,  how  must  be  laid  out,  §  512. 

Road  not  to  exceed  one  hundred  feet  in  width,  §  513. 

Subscription,    amount    of    as    prerequisite    to    filing 
articles,  §  293. 

Survey  and  map  to  be  filed  and  approved  by  super- 
visors, §  513. 

Ten  per  cent  of  amount  subscribed  to  be  paid,  §  294. 

Toll  gates,  §  513. 

Toll  gatherer  may  detain  persons  until  payment,  §  517. 

Toll  gatherer  detaining  unreasonably,  liability,  §  518. 

Tolls,  evading  and  its  effect,  §  519. 

Tolls  in  Butte  County,  §  514. 

Tolls  in  Del  Norte  County,   §  514. 

Tolls  in  Humboldt  County,  §  514. 

Tolls  in  Klamath  County,  §  514. 

Tolls  in  Plumas  County,  §  514. 

Tolls  in  Sierra  county,  §  514. 

Tolls,  limit  upon  amount  of,  §  514. 

Tolls  may  be  charged,  §  514. 

Tolls,  rates  of  to  be  posted,  §  516. 

Tolls  to  be  reduced,  when,  §  521. 

Trespass  on  property  of,  penalty  for,  §  520. 
WAIVER.    Code  provisions,  right  to  waive,  §  3268. 

Communications  by  insured,  waiver  of,  §  2567. 

Communication  in  insurance,  of,  §  2567. 

Demand  by  pledgor  or  debtor,  of,  §  3004. 

Demand  of  performance,  waiver  of  by  refusal  to  pep» 
form,  §  3004. 

Law  may  be  waived,  when  and  when  not,  §  3513. 


1032  -WAIVER— WASTE. 

Lunatic  cannot  lose  rights  by,  §  40. 

Notice  of  loss,  waiver  of  defects  in,  §  2635. 

Notice  of  loss,  waiver  of  delay  in,  §  2636. 

Notice  of  sale  of  pledged  property,  of,  §  3003. 

Objections  to  offer  of  performance,  of,  §  1501. 

Of  right  of  option,  §  1756. 

Option  as  to  delivery  of  goods,  of,  §  1756. 

Presentment  and  notice,  of,  §  3159. 

Protest,  of,  §  3160. 

Provisions'  of  code  by  stipulation,  §  3268. 

Sale  for  delinquent  assessment,   waiver  of,   §  349. 

Vendor's  lien,  transfer  of  contract  waives,  §  3047. 
WAR  dissolves  partnership,  §  2450. 
WAREHOUSEMEN:     See  Storage. 

Carrier's  liability  as,   §  2120. 

Carrier's  liability  ceases  on  delivery  to,   §  2121. 

Fire,  liability  for  loss  by,  p.  780,  §  9,  Stats. 

Receipts,  act  in  relation  to,  p.  778. 
WARRANTY,  agent's  authority  as  to,  §  2323. 

Agent's  authority,  of,   §  2342. 

Collateral:    See  Collateral  Warranties. 

Collection,  warranty  of,  §  2800. 

Covenants  of,  run  with  land,  §  1463. 

Damages  for  breach  of  covenant  of,  §  3304. 

Damages  for  breach  of  warranty  of  fitness,  §  3314. 

Damages  for  breach  of  warranty  of  quality,  §  3313. 

Damages  for  breach  of  warranty  of  title  to  personalty, 
§  3312. 

Good-will,  warranty  on  sale  of,   §  1776. 

Indorser,  by,  §  3116. 

In  policy,  violation  of,  effect  of,  §§  2610,  2611. 

Judicial  sale,  on,  §  1777. 

Lineal  and  collateral  abolished,  §  1115. 

Lineal:    See  Lineal  Warranties.  . 

Money,  of,  on  exchange,  §  1807. 

Policy  of  insurance,  form  of,  §  2604. 

Sale  of  good-will,  warranty  on,  §  1776.  ■' 

Seaworthiness,  §  2681. 

That  ship  will  carry  neutral  papers,  §  2688. 
See  Sales. 
WASTE,  grantee's  right  to  recover  for,  §  821. 
Mortgaged  property,  on,  §  2929. 


WATER.  1033 

WATER:    See  Water  and  Canal  Corporation. 
Abandonment  of  appropriation,  §  1411. 
Alluvion,  defined,  §  1014. 
Alluvion,  ownership  of,  §  1014. 
Appropriation,  completion  of,  §  1417. 
Appropriation,  diligence  in  prosecuting  work,  §§  1416, 

1420. 
Appropriation,  failure  to  comply  with  rules,  §  1419. 
Appropriation,  first  in  time,  first  in  right,  §  1414. 
Appropriation  must  be  for  useful  purpose,  §  1411. 
Appropriation,  rights  in  stream  may  be  acquired  by, 

§  1410. 
Appropriation,  time  to  commence  works,  §§  1416,  1422. 
Appropriation,  time  to  commence  works  when  route 

or  point  of  diversion  on  public  land,  §  1422. 
Appropriation,  time  to  commence  works  where  debris 

commissioners  recommend  dam,  §  1416. 
Avulsion,  §  1015. 

Boundaries,  as,  rights  of  owners,  §  830. 
Change  of  place  of  diversion,  right  and  manner  of, 

§  1415. 
Changing  use,  §  1412. 
Completion  of  diversion,  defined,  §  1417. 
Diligence  in  appropriating,  §§  1416,  1420. 
Diversion,  point  of  may  be  changed,  §§  1412^  1415. 
Diversion,  change  of  place  of,  manner  of,  §  1415. 
Easement  of  having  flow  without  disturbance,  §  801. 
Easement  to  receive  and  discharge  on  land,  §  801. 
Easement  to  take,  §  801. 
Forfeiture  of  claim  to,  §§  1419,  1420. 
Hydraulic  mining,  §§  1424,  1425. 
Islands,  to  whom  belong,  §§  1016-1018. 
Lake,  state  owns  land  below  water  of,  §  670. 
Notice  of  appropriation,  recording,  §§  1415,  1421. 
Notice  of  appropriation,  requisites  of,  §  1415. 
Notice,  posting,  §  1415. 
Present  claimant,  rights  of,  §  1420. 
Priority  of  right  to,  §  1414. 
Reclaiming,  after    having  turned  into  other  channel, 

§  1413. 
Recording  notices,  §§  1415,  1421. 
Relation,  doctrine  of,  applied,   §  1418. 
Civ.  Code— 44 


1034         WATER— WATER    AND    CANAL    CORPORATION. 

Relation  of  claim  to  date  of  notice,  §  1418. 
Servitudes,  §§  801,  802. 

State  is  owner  of  land  below  navigable  stream,  §  670. 
Tide  lands,  state  is  owner  of,  §  670. 
Turning  into  another  channel,  reclaiming,  §  1413. 
WATER   AND  CANAL  CORPORATION,  bridges,   duty  to 

maintain,  §  551. 
City  or  town,  contract  to  supply,  authority  required, 

§  548. 
City  or  town,  contract  to  supply,  limit  upon  term  of, 

§  548. 
City  or  town,  contract  to  supply,  validity,  §  548. 
City  or  town,  contract  to  supply  water,  §  548. 
City  or  town,  right  to  use  streets,  alleys,  and  ways  in, 

§  550. 
Duties  of,  in  furnishing  cities,  §  549. 
Flumes,  duty  as  to,  §  551. 
Highway,  must  not  obstruct,  §  551. 
Irrigation,  corporation,  duties  of,  §  552, 
Irrigation  rights,  §  552. 

Irrigation,  right  to  continued  use  of  water  for,  §  552. 
Irrigation,  right  to  flow  and  use  of  water  a  perpetual 

easement,  §  552. 
Irrigation,  right  to  water  for,  sold  by  irrigating  com- 
pany, §  552. 
May  provide  that  stock  is  appurtenant  to  land,  §  324. 
May  provide  water  will  be  sold  to  stockholders  only, 

§  324. 
Pipes,  duties  as  to,  §  551. 
Rates  and  charges  to  cities,  §  549. 
Rates,    city   or    town    may    regulate    though    contract 

made,  §  548. 
Rates,  commissioners,  decision  of  majority  determine, 

§  549. 
Rates,  commissioners,  how  selected,  §  549. 
Rates  to  be  fixed  by  commissioners,  §  549. 
Stock,  appurtenant  to  land,  how  transferred,  §  324. 
Supervisors  may  prescribe  rules  for,  §  549. 
Transfer  of  stock  of  water   or  irrigation  companies, 

§  324. 
Water  in  case  of  fire  free  of  charge,  §  549. 
See  Waters. 


WATER    COMPANY— WILLS,  I.  1035 

WATER  COMPANY,  transfer  of  stock,  §  324. 

Rates  of  water  sold  for  irrigation,  may  fix,  p.  786,  Stats. 
Sale,  rental  and  distribution  of  water  other  tliau  in 
cities,  act  relating  to,  p.  781. 
WAY:    See  Right  of  Way. 
Boundary  by,  §  831. 
Easement  of,  §  801. 
WHARF     CORPORATIONS:     See    Bridge,    Ferry,    Wharf, 

Chute  and  Pier  Corporations. 
WHARFINGER.     Receipts,  act  relating  to,  p.  778. 
WHARVES.     Statutes  governing  wharf  corporations  apply 

where  owned  by  individual,  §  531. 
WIDOW,    legacy    to,    chargeable    with    debts    of    testator, 
§  1361. 
Interest  on  legacy  to,  when  accrues,  §  1369. 
Inheritance  by:    See  Succession. 
WILL,  ESTATES  AT,  are  chattel  interests,  §  765. 
Not  subject  to  execution,  §  765. 

WILLS. 

I.     Who  may  make;  execution  of;  witnesses;  effect 

of  code. 
II.     Validity  of;  omissions  or  mistakes. 

III.  What  may  pass  by;  who  may  take  under. 

IV.  Conditions  in. 

V.     Foreign;    laws  governing. 
VI.     Interpretation. 
VII.     Devises    and    legacies;    abatement;    ademption; 

lapse. 
VIII.     Codicils. 
IX.     Advancements;    annuities. 
X.     Nuncupative. 
XI.     Olographic. 
XII.     Revocation. 

XIII.  Alteration. 

XIV.  Revival   and   republication. 
Succession:    See  Succession. 

I.    Who  may   make;   execution  of;   witnesses;   effect  of 
code. 
Acknowledging,   §  1276. 
Attested,  how,  §  1276. 


1036  WILLS,   I,   II,   IIL 

Code,  prior  wills  not  affected  by,  §  1375. 

Competency,  who  lias,  to  make,  §  1270. 

Executed,  how,  §  1276. 

Fee,  word  of  inheritance  not  necessary  to  pass,  §  1329. 

Heir's,  etc.,  not  necessary  to  pass  fee,  §  1329. 

Married  woman  may   dispose  of  separate  estate  by, 

§  1273. 
Married  woman's,  how  executed  and  proved,  §  1273. 
Publication  of,  §  1276. 
Subscribing,  manner  of,  §  1276. 
Subscribing  testator's  name  by  another,  manner  of, 

§  1278. 
Technical  words  not  necessary,  §  1328. 
Witnesses  and  their  attestation,  §  1276. 
Witnesses,  competency  of  creditors  as,  §  1282. 
Witness,  creditor  as,  effect  of,  §  1283. 
Witnesses,  effect  of  not  adding  residence,  §  1278. 
Witnesses,   effect  of  their   subsequent  incompetency, 

§  1280. 
Witness,  gift  to,  and  his  rights  thereon,  §  1283. 
Witness,  gifts  to,  validity  of,  §§  1282,  1283. 
Witnesses,  manner  of  signing,  §  1276. 
Witnesses,  number  of,  §  1276. 
Witness  to  add  residence,  §  1278. 
Written,  to  be,  §  1276. 
li.     Validity  of;  omissions  or  mistakes. 
Conjoint,  validity,  §  1279. 
Fraud,  will  procured  by,  §  1272. 
Mistakes   and   omissions,   declarations   not   admissible 

to  correct,  §  1340. 
Mistakes,  correcting,   §  1340. 
Mutual,  validity,  §  1279. 
Omissions,  supplying,  §  1340. 
Undue  influence,  will  procured  by,  §  1272. 
III.     What  may  pass  by;  who  may  take  underi 
Charitable   uses,   restrictions   on  power  of   devise  to, 

§  1313. 
Corporations  for  scientific,  literary,  or  educational  puf- 

poses,  power  to  take  under,  §  1275. 
Corporations,  power  of  to  take  under,  §  1275. 
Life  insurance  may  pass  by,  §  2764. 


WILLS,    III,    IV,   V,   VI.  1037 

Property  may  be  acquired  by,  §  1000. 
What  may  pass  by,  §  1274. 
Who  may  take  under,  §  1275. 

IV.  Conditions  in. 

Conditional  devises  and  bequests,  defined,  §  1345. 
Conditional  disposition  vests  when,  §  1347. 
Will,  validity  of,  §  1281. 
Precedent,  §§  1346-1348, 

Precedent,  if  impossible  bequest  vests,  §  1347. 
Precedent,  nothing  vests  until  fulfilled,  §  1347. 
Precedent,  when  deemed  performed,  §  1348. 
Subsequent,  defined,  §  1349. 

V.  Foreign;  laws  governing. 
Foreign,  validity  of,  §  1285. 
What  law  governs,  §§  1375,  1376. 

VI.  Interpretation. 
Against  intestacy,  §  1326. 

Ambiguous  or  doubtful  parts,  how  may  be  explained, 

§  1323. 
Class,  devise  or  bequest  to,  §  1337. 
Clear  bequest  not  affected  by  other  provisions,  §  1322. 
Clear  bequest  not  affected  by  reasons,  etc.,  §  1322. 
Conversion,  equitable,  §  1338. 
Declarations  of  testator  as  to  intent  not  admissible, 

§  1340. 
Devested,  vested  disposition,  when  only  can  be,  §  1342. 
Devise  passes  all  estate  testator  had,  §§  1311,  1329. 
Devise  or  bequest  of  all  property  passes  what,  §  1331. 
Donation  and  limitation,  words  of,  §§  1334,  1335. 
Descendants,  interpretation  of,  §  1334. 
Estate  conveyed  by,  §  1311. 
Family,  devise  to  what  vests,  §  1334. 
Future  interests  pass  by,  §  699. 
General  devise  or  bequest,  what  passes  by,  §  1331. 
"  Heirs,"  etc.,  not  necessary  to  pass  fee,  §  1329. 
Heirs,  relations,  descendants,  etc.,  §  1334. 
Harmonizing  parts,  §  1321. 
Income,  bequest  of,  when  accrues,  §  1366. 
Intention,  ascertained  how,  §  1318. 
Intention  to  be  drawn  from  words  of  will,  §  1318. 
Intention  to  be  given  effect,  §  1317, 


1038  WILLS.  VI. 

Interpretation,  intention  to  govern,  §  1370. 

Interest,  bequest  of,  when  accrues,  §  1366. 

Interpretation,  intention,  oral  declarations  not  admis- 
sible, §§  1318,  1340. 

Interpretation,  intention,  will  to  be  construed  accord- 
ing to,  §  1317. 

Intestacy  avoided,  §  1326. 

Issue,  interpretation  of,  §  1334. 

Irreconcilable  parts,  latter  part  controls,  §  1321. 

Legacies,  legatees  take  as  tenants  in  common,  when, 
§  1350. 

Legal    representativcB,    rights    under    disposition    to, 
§  1334. 

Limitation,  words  of,  §§  1334,  1335. 

Mistakes  and  omissions,  how  corrected,  §  1340. 

Nearest  relations,  disposition  to,  rights  under,  §  1334. 

Next  of  kin,  disposition  to,  rights  under,  §  1344. 

Oral  declarations  excluded,  §§  1318,  1340. 

Partial  intestacy  not  favored,  §  1326. 

Passes  after-acquired  estate,  §  1312. 

Passes  what  property,  §§  1329,  1331. 

Passes  what  realty,  §§  1311,  1312. 

Personal  representatives,  rights  under  disposition  to, 
1334. 

Power  to  devise,  how  executed  by  terms  of  will,  §  1330. 

Relations,  disposition  to,  rights  under,  §  1334. 

Relatives,  interpretation  of,  §  1334. 

Residue,  devise  or  bequest  of,  §§  1332,  1333. 

Resort  to  other  parts  of  will  or  to  references,  §  1323. 

Rules  of,  in  general,  §  1319. 

Several    testamentary    instruments    to    be    construed 
together,  §  1320. 

Shelley's  case,  rule  in,  §  1335. 

Technical  words,  how  construed,  §  1327. 

Tenants    in    common,    beneficiaries,    when    take    as, 
§  1350. 

Time  of  creation  of  interest  created  by,  §  V49. 

Vest,  legacies  and  devises,  when,  §  1341. 

Vested,  disposition  is,  when,  §  1341. 

Vesting  of  legacies  and  devises,  time  of,  §  1341. 

Words  of  donation  and  limitation,  §  1335. 

Words  refer  to  what  time,  §  1336. 


WILLS,   VI,  VII.  1039 

Words  taken  in  ordinary  sense,  §  1324. 

Words  to  be  made  operative,  §  1325. 
VII.      Devises     and     legacies;     abatement;     ademption; 
lapse.  * 

Abatement,  when  takes  place,  §  1362. 

Ademption,  when  advancement  is,  §  1351. 

Death   of    devisee    in    lifetime    of   testator,    rights    of 
descendants,  §  1310. 

Death  of  legatee  or  devisee  before  testator,   §§  1343, 
1344. 

Deve.sted,  disposition  cannot  be,  except  on  precise  con- 
tingency, §  1342. 

Devise  carries  all  estate  of  devisor,  §§  1311,  1329. 

Devise,  clear  and  distinct,  not  affected  by  otner  pro- 
visions, §  1322. 

Devise,  conditional,  defined,  §  1345. 

Devise,  extent  of  estate  conveyed  by,  §  1311. 

Devise  lapses,  when,  §§  1343,  1344. 

Devises,  specific,  possession  how  obtained,  §  1363. 

Devise,  specific,  title  passes  by  will,  §  1363. 

Devises,  when  vest,  §  1341. 

Devisees,  liability  for  obligation  of  testator,  §  1377. 

Devisee,  remedies  of,  for  rent,  non-performance,  waste, 
or  forfeiture,   §  821. 

Devisee,  warranty  of  devisor,  liability  on,  §  1115. 

Gift,  satisfying  before  death,  §  1367. 

Interest  vests,  when:      See  ante,  VI,  Interpretation. 

Inventory  of  property  by  legatee  for  life,  §  1365. 

Legacies,  abatement  of,  §  1362. 

Legacies,  clear  and  distinct,  not  affected  by  other  pro- 
visions, §  1322. 

Legacy,  conditional,  defined,  §  1345. 

Legacy,  demonstrative,  defined,  §  1357. 

Legacy,  demonstrative,  failure  of  fund,  effect  of,  §  1357.  ' 

Legacies,  due  when,  §  1368. 

Legacy,  general,  is  what,  §  1357. 

Legacies,  interest  on,  §  1369. 

Legacy  lapses,  when,  §§  1343,  1344. 

Legacies,  order  of  resort  to  property  for  payment  of, 
§  1360. 

Legacies,  preference  of  to  kindred,  §  1361. 
■Legacy,  residuary,  defined,  §  1357. 

Legacy,  residuary,  embraces  what,  §  1357. 


1040  WILLS,    VII,    VIII,    IX,    X. 

Legacy,  satisfying  before  death,  §  1367. 

Legacy,  specific,  defined,  §  1357. 

Legacy,  specific,  effect  of  failure  of,   §   1357. 

Le^cy,  specific,  possession  how  obtained,  §  1363. 

Legacies,  specific,  title  passes  by  will,  §  1363. 

Legacies  to  kindred,  preference,  §  1361. 

Legacies,  when  vest,  §  1341. 

Legatee  for  life,  inventory  by,  §  1365. 

Legatees,  liability  for  obligations  of  testator,  §  1377. 

Legatees'  possession,  §  1365. 

Specific   devise  or  legacy,   possession,  how  obtained, 

§  1363. 
Specific  devise  or  legacy,  title  passes  by  will,  §  1363. 
VIM.     Codicils. 

Republication  by,  §  1287. 
Revocation  of  will  revokes,  §  1305. 
Will  includes,  §  14. 

IX.  Advancements;    annuities. 
Advancement,  effect  of,  §  1309. 
Advancements,  when  ademptions,  §  1351. 
Advancement:    See  Advancements. 

After-born  children,  effect  of  advancement  to,  §  1308. 
Annuities  commence  when,  §  1368. 
Annuity  defined,  §  1357. 
Annuity,  effect  of  failure  of  fund,  §  1357. 
Annuity,    failure    of   fund,    resort   to    other    proper^, 
§  1357. 

X.  Nuncupative. 

■    How  executed,  §  1288. 
Limited  to  thousand  dollars,  §  1289. 
Probate  of,  §  1291. 

Probate  of,  process  to  interested  parties,  §  1291. 
•     Probate  not  to  be  granted  until  after  fourteen  days, 
§  1291. 
Proof  of,  limitation  on  time  for,  §  1290. 
Requisites  of,  §  1289. 
To  be  reduced  to  writing,  §  1291. 
When  may  be  made,  §  1289. 
Who  may  make,  §  1289. 
Witnesses,  §  1289. 
Words  to  be  reduced  to  writing  in  thirty  days,  §  1290. 


WILLS,   XI,   XII,  XIII,   XIV.  1041 

XI.  Olographic. 

Defined,  §  1277. 

Manner  of  executing,  §  1277. 

XII.  Revocation. 

Alteration  in  interest  disposed  of,  when  is,  §  1304. 

By  duress,  §  1272. 

By  fraud,  §  1272. 

By  subsequent  will,  §  1296. 

By  undue  influence,  §  1272. 

Charge  or  incumbrance  upon  land  as,  §  1302. 

Conjoint,  revocation  of,  §  1279. 

Contract  for  transfer  of  property  not  a,  §  1301. 

Conveyance,  effect  of,  on,  §§  1301,  1303,  1304. 

Conveyance  as  a,  §§  1302,  1303. 

Does  not  revive  prior  will,  unless,  §  1297. 

Effect  of  marriage  of  man,  §  1299. 

Effect  of  marriage  of  woman,  §  1300. 

Evidence  of,  when  canceled  by  third  person,  §  1293. 

In  what  ways  accomplished,  §  1292. 

Marriage  and  birth  of  issue,  §  1298. 

Marriage  and  birth  of  issue,  evidence  to  rebut  pre- 
sumption of,  from,  §  1298. 

Marriage,  evidence  to  rebut  presumption  of  revocation 
by,  §  1299. 

Married  woman  may  revoke  wills,  §  1273. 

Mortgage  not  a,  §  1302. 

Mutual,  revocation  of,  §  1279. 

Of  wHl  in  duplicate,  §  1295. 

Provisions  as  to,  to  what  wills  apply,  §  1374. 

Revoked,  how,  §  1292. 

Revokes  codicil,  §  1305. 

XIII.  Alteration. 
How  effected,  §  1292. 

Married  women  may  alter,  §  1273. 

XIV.  Revival  and   republication. 

Marriage,  will  revoked  by,  not  revived  by  death  of 

husband,  §  1300. 
Revive,  revocation  of  subsequent  will  does  not,  unless, 

§  1297. 
Republication  by  codicil,  §  1287. 


1042  WINE— WORDS    AND    PHRASES. 

WINE,  recording  sale  of,  §  3440. 

Sale  of,  delivery  not  necessary  to  validity  of,  §  3440. 

Sale  of  to  be  in  writing,  §  3440. 
WITNESS,  acknowledgment  by,  requisites  for,  §  1185. 

Depose  defined,  §  14. 

Handwriting,  proved  how,  §  1199. 

Handwriting,  when  may  be  proved,  §  1198. 

Mark,  signature  by,  two  witnesses  necessary,  §  14. 

Nuncupative  will,  to,  §  1289. 

Oath  of,  in  taking  acknowledgment,  §  1185. 

Olographic  will,  not  necessary  to,  §  1277. 

Privileged  testimony,  §  47. 

Recording  instrument  may  be  proved  by  other  than 
subscribing,  when,  §  1198. 

Subscribing,  manner  of  proving  instrument  by,  §§  1195- 
1197. 

Subscribing,  to  be  known  to  oflBcer  taking  proof,  §  1196. 

Subscribing  to  prove,  what,  §  1197. 

Subscription  includes  mark,  §  14. 

Testify  includes  what,  §  14. 

Will,  creditor  as  witness  to,  effect  of,  §  1282. 

.Will,  to,  §§  1276-1279. 

Will,  to,  cannot  take  under,  §  1282. 

When  may  take  as  much  under  will  as  by  succession, 
§  1283. 
WOOD,  right  to  take,  §  802. 
WORDS   AND   PHRASES:      See  Definitions. 

Completion,  §  1417. 

Construction  of,  §  13. 

Create  debts,  §  579. 

Depose,  §  14. 

Descendants,  §  1334.  ; 

Donation  and  limitation  in  will,  §  1335. 

Family,  §  1334. 

Grant,  §  1053. 

"  Grant,"  covenants  implied  from,  §  1113. 

Head  of  a  family,  §  1261. 
,     Heirs,  §  1334. 

Incumbrances,  §  1114. 

Inheritance  of,  not  necessary  to  pass  fee,  §  1072. 

Interpretation  of  doubtful,  §§  1068,  1654. 


WORDS,  ETC.— WRECKS  AND  WRECKED  PROPERTY.       1043 

Issue,  §  1334. 

Joint  authority,  giving,  how  construed,  §  12. 

Legal  representatives,  §  1334. 

Masculine  gender  includes  what,  §  14. 

Month,  §  14. 

Nearest,  §  1334. 

Nearest  relations,  §  1334. 

Next  of  kin,  §  1334. 

Oath  includes  affirmation  or  declaration,  §  14. 

Person  includes  corporation,  §  14. 

Personal  property,  §  14. 

Personal  representatives,  §  1334. 

Plural  includes  singular,  §  14. 

Property  includes  realty  and  personalty,  §  14. 

Real  property,  §  14. 

Relations,  §  1334. 

Representatives,  §  1334, 

Section,  §  14. 

Shipping,  §  960. 

Ships,  §  960. 

Signature  includes  mark,  §  14. 

Singular  includes  plural,  §  14. 

Subscription  includes  mark,  §  14. 

Taken  in  ordinary  sense,  §§  1324,  1644. 

Technical,  how  construed,  §§  13,  1327,  1645. 

Technical,  not  necessary  in  will,  §  1328. 

Testify,  §  14. 

To  be  given  some  meaning  if  possible,  §  1326. 

Typewriting,  writing  includes,  §  14. 

Will  includes  codicil,  §  14. 

Will,  in,  to  what  time  refer,  §  1336. 

Will,  to  receive  operative  construction  in,  §  1335. 

Writing,  includes  printing,  §  14. 

Writing  includes  typewriting,  §  14. 

WORKMANSHIP,  ownership  of  property  formed  by  ma- 
terials and,  §  1028. 

WRECKS   AND  WRECKED    PROPERTY,  involuntary  de- 
posit in  case  of  shipwreck,  §  1815. 
Duty  of  depositary  in  such  case,  §  1816. 
Wages  of  seamen  not  lost  by  shipwreck,  when,  §  2058. 


1044  WRITING— YEARS,    ESTATES    FOR. 

WRITING:     See  Statute  of  Frauds. 

Certificate  of  proof  of  instrunaent,  what  to  state,  §  1200. 

Contract,  in,  controls  printed  parts,  §  1651. 

Contract,  in,  how  altered,  §  1698. 

Contract  prevented  by  fraud  from   being  put  in,  en- 
forced when,  §  1623. 

Erroneous,  how  far  disregarded,  when,  §  1640. 

Includes  printing,   §  14. 

Intention  of  parties  to   be   ascertained  from,   §   1639. 

Non-negotiable  instrument  in,  transferable,  §  1459. 

Presumption    as    to    value    of    instrument   in    writing, 
§  3356. 

Private  property  in,  §  985. 

Supersedes  oral  negotiations,  §§  1625,  1626. 

Typewriting,   includes,   §   14. 

Warranty  on  sale  of  written  instrument,  §  1774. 
WRONG:      See  Tort. 

Damages  for,  measure  of,  §§  3333-3341. 

He  who  consents,  suffers  no,   §   3515. 

Law  does  not  interpose  between  parties  equally  In, 
§  3524. 

Minors  and  lunatics  liable  for,   §   41. 

No  one   can   be   permitted   to   take   advantage  of  his 
own,   §  3517. 

Remedy  for  every,   §  3523. 
YEAR,  contract  not  to  be  performed  within,  §  1624. 

What  deemed  to  be,  in  computation  of  interest,  §  1917. 
YEARS,  ESTATES  FOR,  are  chattels  real,  §  765. 

Limitation  on  power  of  suspension,   §  770. 


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